Not so long ago, persuading lay people that they needed
extensive preparation before testifying in a legal proceeding was a
battle. Many confident, articulate executives were convinced they
could just "go in and tell my story," and they were insulted by the
notion that they needed some lawyer to prepare them. Too many
experienced lawyers didn't push back.
Then came an explosion of high-profile lawsuits and
investigations, and with them a parade of highly successful
executives who proved to be very bad witnesses. Bill Gates, Martha
Stewart, Scooter Libby, Dennis Kozlowski, Kenneth Lay -- the
list goes on. Now, people faced with the prospect of being a
witness may wonder if there is some reason this happened, and if it
could happen to them. The answers are "Yes" and "Yes."
It happened because clients failed to understand that they were
entering a different and dangerous world. In this world, it's not
just about experience and intelligence. It's about preparation, and
understanding the audience, the rules and the "core themes" of the
case. Even executives who have spent years mastering the corporate
world must nonetheless understand it takes commitment, time and
effort. This article offers tips to help you better prepare your
Several years ago, the TV series The West Wing had a
series of episodes about a scandal in the White House. The
president had multiple sclerosis and he and his advisers did not
disclose it. The news has now broken, and an investigation has been
launched into whether top aides broke the law in covering this up.
The president's press secretary, C.J., has been subpoenaed to
testify and has been called to meet with the White House counsel to
C.J. is intelligent and talkative. She is clearly nervous and
angry about the situation - and takes it out on counsel by
being sarcastic, uncooperative and not eager to take advice.
Counsel is trying to make her understand the need to prepare. Then,
in mid-conversation, he stops, and there is roughly the
Counsel: Do you know what time it is?
C.J.: Sure, it's 4:30.
Counsel: You've got to get out of the habit of
C.J.: Doing what?
Counsel: Answering more than was asked!
Do you know what time it is?
Counsel: Now we're making progress. We'll take a
break and meet again later today.
If you teach your witness nothing else, teach him or her the
answer to the question, "Do you know what time it is?" because the
right answer is the difference between a conversation and
testimony. In a conversation, the answer "yes," the accurate
answer, the precise answer, is a bad one. That's not what the
questioner meant. That's not where the conversation is flowing. In
the unnatural and precise testimony environment, it's the right
answer. That is a core difference between a normal conversation and
Testimony is not a conversation. It has its own language and its
own rhythm. Question, pause, answer, stop. Guessing, interrupting
and volunteering are inappropriate and dangerous in this narrow and
artificial world, where every word is taken down under oath and may
be picked apart.
In this world, the questioner appears to be in control. It's an
illusion, but even the most accomplished witness can fall victim to
it. The witness has the right and the responsibility to take
control. In meetings or other interactions, most people know
the way to take control is not by shouting the loudest, but by
utilizing some clearly established techniques or rules. So it is
with testimony. Here are 10 rules.
1. Take your time
This is, amazingly, the most important rule, and the one from
which everything else follows. Slow it down, think it through and
control the pace. Lawyers want rapid-fire Q&A, but if the
lawyer makes a mistake, no one cares. If the witness makes a
mistake, it is, "The Gift That Keeps On Giving." From the very
first question, slow it down.
2. Remember you are making a record
You are dictating the first and final draft of a very important
document, with no rewind button and no second draft, so think about
your language. Certain words can take on special meanings. Learn
what they are in your case, remembering words can have different
meanings to different people. There will be only one
3. Tell the truth
This seems obvious, but truth in a witness environment is a very
narrow concept. It's what you saw, heard or did. Everything else is
4. Be relentlessly polite
This will feel personal. They're attacking you. But remember
that a witness who is angry or defensive isn't thinking clearly and
isn't controlling the language or the pace. Lawyers know that. A
few garbage questions, and off we go! It's a scam. Don't fall for
it. Kill them with kindness. Be relentlessly polite, positive and
5. Don't answer a question you don't
Is it vague language, strange phrasing or distorted assumptions?
Is it just too long to be clear? It doesn't matter why the
witness doesn't understand a question. Don't answer it. Just say,
"Please rephrase the question."
6. If you don't remember, say so
Answer clearly. Just say, "I don't recall," and stop. Don't try
too hard, and don't change your answer just because the question is
asked over and over.
7. Do not guess
Much of what makes a good conversationalist and an intelligent,
intuitive person involves guessing. But guessing is inappropriate
and dangerous for a witness. That includes hypothetical
8. Do not volunteer
"Question, pause, answer, stop." A witness must become
comfortable with the silence of waiting for the next question.
9. Be careful with documents
Documents are just written versions of what someone believed.
Treat them mechanically. There is a simple, unvarying three-step
protocol witnesses should follow: If you are asked a question that
relates in any way to a document: (1) Ask to see the document.
Don't allow anyone to draw you into a debate with a document that
is not in front of you. You can't win. (2) Read it. There are three
issues with any document: credibility, language and context. You
cannot carefully consider each of them unless you read it. Read all
of it, slowly and carefully. (3) Ask for the question again. It's
basic fairness. They've read the documents and picked out one
little piece to ask about. Now that you've read it, the question
will be clearer (and you may get a better question).
10. Use your counsel
Listen to everything that is said, understand what objections
mean for you, ask questions when you can and take breaks before you
Most of these rules are difficult to master. They are contrary to
what we're used to, and often counterintuitive. But if they are
practiced, they can impose a degree of discipline and control on
the process that makes it significantly more fair and
Witness preparation is an important part of the litigation
process. It involves a careful review of the audience, the rules
and the core themes. It should also include extensive and realistic
practice testimony. Learning how to testify is like learning to
ride a bicycle: You can't do it just by talking about it. It might
require some trauma and a few bruises. To master this strange
world, you need to enter into it, and then review what you've
The legal profession too often has failed clients by not preparing
them for the challenges of being a witness, sometimes with
disastrous consequences. The damage can go beyond one case and
reverberate for years to come.
Anyone in any business in America today is either in the
litigation business too, or eventually will be. You and your
clients need to accept that and understand the process in order to
manage it. An investment in witness preparation can be an
extraordinarily productive one financially and, as one executive
I've prepared has commented, it also will help you - and your
clients - sleep better at night.
Dan Small, a trial lawyer and partner at Holland & Knight,
handles complex civil litigation, white-collar criminal matters and
witness preparation. He is a former federal prosecutor and former
general counsel for a national health care management firm, and he
was a Lecturer on Law at Harvard Law School.