November 2018 | Around the ABA

Witness preparation: Lessons from Bill Cosby trial, more

We’ve all heard the instructions a lawyer often gives a client before giving testimony: Listen carefully to the question, keep your answers short, don’t try to answer a question you don’t understand, answer only the question that’s asked. Clients are trained to fear the opposing lawyer, and told the less said the better under questioning. In the ABA webinar “Why Smart People Give Stupid Testimony,” lawyer Kenneth R. Berman explains that this one-size-fits-all method leads to under-answered questions that often leave the wrong impression and cede control of the narrative to the other side.

Berman, author of the ABA book “Reinventing Witness Preparation: Unlocking the Secrets to Testimonial Success” and partner at Nutter McClennen & Fish LLP in Boston, explains: If a witness is asked, “did you call an ambulance after the accident?” and the witness answers “no,” the fact finder is left to imagine why not. Instead, the witness could answer “no, because my friend had already called 911,” or “no, because I didn’t have my phone with me,” providing more context so assumptions aren’t made.

Another example comes from the Bill Cosby case. In using this example, Berman cautions that he’s not defending Cosby or trying to teach lawyers how to get people like Cosby off the hook. But Cosby gave an answer in a deposition that illustrates that the way a question is asked and answered can have far-reaching consequences. In 2005, Andrea Constand sued Cosby, claiming that he had drugged and sexually assaulted her, which Cosby denied. During discovery, it was revealed that 30 years earlier in the 1970s, Cosby had gotten seven prescriptions for Quaaludes. In the deposition, the lawyer asked Cosby, “When you got the Quaaludes, was it in your mind that you were going to use these Quaaludes for young women that you wanted to have sex with?”

There are three things that we need to understand about this question, Berman said:

  • First, this question was not asking Cosby what he did with the Quaaludes, or about his conduct. It was only asking what was in his mind, what he thought at a moment in time. 
  • Second, the question was ambiguous, because whatever was in his mind could have ranged anywhere from a fleeting thought to conscious, purposeful intent.
  • Third, it didn’t say anything about consent or lack of consent.

But questions create images. “Every word, every phrase in a question paints a picture, and the brain fills in the rest,” Berman said, adding that we tend to associate words with other words from the same family, such as bed-nap-slumber-pillow-yawn-dream-tired-blanket-cot-snore-snooze. “If I were to ask you to write down as many of those words as you can remember, studies show that most of you would write the word ‘sleep,’ even though I never said the word ‘sleep’.” Look at the words and phrases in this question and what they bring to mind: Quaaludes-use, Quaaludes, women, young women, sex, have sex, to have sex. “That’s the image of this question: ‘Use these drugs to have sex with young women’,” and Cosby answered yes.

After the deposition, Cosby settled the case and paid Constand nearly $4 million. The deposition resurfaced in 2015 after another woman accused Cosby of the same thing, and eventually Cosby was convicted. One juror who voted to convict explained that Cosby had admitted to giving Quaaludes to young women in order to have sex with them. “So, let’s put this in perspective,” Berman said. “In 2018, a juror who was essential in securing a guilty verdict was persuaded – beyond a reasonable doubt – that Cosby was guilty of committing a sex offense in 2004 because of Cosby’s yes answer to an ambiguous question about a thought he had in a moment in time in the 1970s. This is the self-destructive power of an unexplained yes.”

What if Cosby had answered that question this way instead: “Back in the 1970s, Quaaludes were a popular recreational drug – like marijuana or alcohol. And in my profession, in television and entertainment, it was very common for people to go to parties, take Quaaludes with them, use them freely and share them. In hindsight, I’m not proud of it. But it did happen. Also, at that time in my career, I imagine because I was a celebrity, many women would flirt with me. So, at that time and in that setting, I might have thought that it might be nice to share a Quaalude with a woman who I found attractive.” That thought process might’ve been what led Cosby to answer yes in the first place, but it would’ve been far better than the answer he gave. “It would’ve put distance between the 1970s Cosby and the 2005 Cosby,” Berman said. “Most importantly, it would’ve allowed the listener to hear the answer in words that Cosby controlled and would’ve stopped the listener from using his or her imagination to imagine Cosby in the worst possible scenario.”

That long answer would’ve broken cardinal rules of conventional witness preparation, he said. It would’ve been best if he’d reframed the question this way, as long as it was truthful: “If you’re asking whether I intended to use those Quaaludes to take sexual advantage of women, the answer is no.” That way, he would’ve met the question with a denial consistent with the theme of his defense. “He wouldn’t have been trying to not lose the case, but to win it,” Berman said.

When a client answers a question with “I don’t remember,” or “I don’t know,” Berman says those are safe answers, but when combined with the conventional instruction to see the opposing side as the enemy, looking to do harm.

Questions are often not pristine, but the fact finder understands the point of the question and can easily leave the witness looking evasive, which can be fatal to your case. Unless they genuinely can’t remember, the witness shouldn’t claim a lack of memory in order to hide a harmful fact.

The danger in instructing a witness to see the opposing lawyer as the enemy is that it puts the witness in the wrong frame of mind – being distrustful of every question, evasive, defensive.  In the right frame of mind, the witness gives answers that build credibility and tells their story in context, of course bound by the truth.

With that in mind, Berman said every case is different and a lawyer needs to understand a witness’ capabilities and tailor the questions and answers to that person. The lawyer must determine how well the witness understands the case – and his or her role in the case – so the lawyer can fashion the right instructions. The witness must understand the objectives of testimony, no matter who is asking the questions, which are:

  • Get the story out truthfully, in a way that supports the case.
  • Answer the question with the fact finder in mind, by making a connection with the fact finder to build credibility and help him or her understand the case.
  • Answer questions as completely as possible the first time they are asked, without leaving a misleading impression.
  • Don’t run away from questions; you want to get story out.
  • Don’t shy away from giving explanations or putting answers in context.
  • Address the underlying point of the question.

“The witness should be clear about the message they want to deliver to the fact finder and impressions they want to leave,” Berman said, adding that the witness and lawyer need to develop clarity about what they want to accomplish during testimony.

The process of preparing a witness is an interactive one, so it’s important for the lawyer and the witness to have a common understanding of the case and objectives of testimony.

This webinar was presented by the ABA Section of Litigation and Tort Trial and Insurance Practice Section