A New Approach to Witness Preparation

The Year: 1981
Scene 1 My Old Office

Me: “So, Frank, you’ll take the oath. She’ll ask you questions. She’ll act real nice. She’s not. She’s gonna try to gut you like a trout! So listen very carefully, pause, think about it, and give her the shortest, true answer. Don’t volunteer! Don’t elaborate! Got it?”

Client: “O-KKKAAAY.”

Scene 2 The Deposition

Counsel: “State your name.”

My client: [Sideways look to me, long pause] “Fffffrank [short pause] Joooones.” [heavy sigh]

I exaggerate—but not much.

In Kenneth R. Berman’s seminal new book Reinventing Witness Preparation: Unlocking the Secrets to Testimonial Success, he describes the type of witness preparation I learned and did in the early 1980s as the “conventional approach.” Back then, the mantra was “don’t give the other side anything unless it is clearly in your favor or you are ethically forced to reveal it.” We didn’t trust most clients enough to tell their story—especially at depositions.

Berman questions the wisdom of the conventional approach of telling clients “less is more,” “don’t educate,” “parse words,” and “liberally use the exit ramps of not knowing or not remembering if you’re not 100 percent sure.” As trial attorneys, we are desperate to control the narrative. While the book has advice for testimony at deposition and trial, the clear lesson is to use what Berman labels the “enlightened approach” early on.

Three questions I walked away pondering were (1) Since only 2 percent of civil cases go to trial, hasn’t the deposition become the trial? (2) Since we have to do the work anyway to make our witnesses shine at trial, why not do that earlier so they shine at the deposition? (3) Does our mantra to keep answers as short as possible in the deposition work against the oath for telling the truth, the whole truth, and nothing but the truth?

In the first chapters, Berman builds his case against the conventional approach using real world examples, such as Bill Cosby, Bill Gates, Kenneth Lay, and Paula Dean. Each example illustrates a danger of the conventional approach and quotes actual testimony from bad depositions. One need only type the words “Bill Gates deposition” into any browser to find some classic examples.

He contrasts this with the good example of the cross-examination of Erin Andrews in her case against a hotel that allowed a stalker to book a room next to hers. It is a clear example of a witness conceding points she must, but also adding “the whole truth,” which helped her case. Her manner is natural, not defensive or evasive.

As Berman reminds us, we tend to think of testimony as a two-way conversation between the lawyer and the witness. In actuality, he says it is a three-part conversation between the lawyer, the witness, and the fact finder, should the case go to trial or dispositive motion.

A client who has been scared by his attorney may respond with a simple “Yes” to the question, “You didn’t ask for an ambulance?” That is certainly the shortest answer—and the truth. However, a client using Berman’s advice may answer the same question, “Yes, but I didn’t start hurting until three days later.”

Now, I know the control freak in all of us is screaming, “Non-responsive, volunteered, move to strike everything after ‘Yes’!” However, the question is whether the trier of fact will be such a stickler. Isn’t the whole response the whole truth?

Berman’s advice makes sense. The conventional approach takes the client out of the normal pattern of listening and speaking. In video depositions, the effect can be devastating. The camera lens is myopic. All you may see is the client and his or her mannerisms magnified. Watching a client listen intently to simple questions, think long about simple questions, and then parse words or bandy with counsel can make the client look evasive.

Berman bolsters his advice with citations to cutting-edge research, such as Nobel laureate Daniel Kahneman’s groundbreaking book Thinking Fast and Slow. He links the current research on “priming” and “framing” and applies those concepts to witness testimony.

The second half of the book contains many actual preparation scripts using Berman’s “enlightened approach.” Topics include how to handle “just yes or no, please” questions, ambiguous questions, lack of memory, documents, body language, and word choice without losing credibility or sounding evasive.

Berman candidly admits that this approach is more work. It must be tailored to each client and the client’s communication skills and modified for witnesses who are not clients. However, isn’t this just what you would do for trial anyway? The usefulness of this enlightened approach is illustrated by Berman’s assessment of Erin Andrews’s performance under cross-examination: “She answered the questions the way her lawyer would have answered them if the lawyer could have testified in her place.”