Podcast: Bridging the Gap

Dan Small: In a separate part of this podcast series, I talked about the 10 rules for witnesses as a way to help bridge the wide gap between normal conversation and communicating in a witness environment. The first is easy and natural, we do it all the time. The second is difficult and unnatural and treacherous. The language, rhythm and goals of both are very different. One of the main reasons for, and results of, this difference is the role that questions play in each environment. We don't think of it this way, but questions in a conversation are not really questions. They're usually just prompts, a way to move the conversation in the general direction and keep it flowing. The specific answer to the specific question is rarely the real goal. Rather, it is to introduce or redirect a new subject area, a new issue, a new idea. If the precise answer to the question is truly important, there is time to get to it. By contrast, questions in a witness environment are really questions. Each word is important, every assumption and misunderstanding is an integral part, and to answer a question is to adopt all of its problems. So a witness must listen to every word of a question with a focus and precision we never bring to a normal conversation.

Understanding that gap between conversational prompt and precise inquiry is essential to preparing to be a witness.

That gap raises a challenge to counsel. How do we make enough of an impact on a witness to help them understand? Over the years, we have developed one method that sometimes helps witnesses draw this distinction between a conversation and witness testimony and consider in real terms the importance of the 10 rules. The idea is to plan into the beginning of your first meeting with a witness. One or more simple, broad conversational questions prompts leading to a normal flow. Then, after the process of talking about the language and rules of being a witness and preparing, going back to that question is a dramatic way to help the witness analyze it and the extraordinary differences between these two means of communicating.

For example, some years ago I was asked to prepare an investment manager who worked for a large firm in their Moscow office and was flown back to the States to give a deposition in a complex financial case. The problem was that between her travel schedule, my travel schedule and the case schedule, the deposition was coming up much too quickly. There was very little time to prepare. So the question became, how do we make an impact? How do we drive it home? She came in, and we chatted for a while. We did that important introduction phase in preparing witnesses, and I asked her normal questions you might ask someone to prompt a good conversation. "How are things in Russia? How was your flight?" Both questions naturally prompted interesting discussions of various issues. After a while, we went into preparing her as a witness, talking about the language of question and answer and how different it was from a conversation. Question, pause, answer, stop, that's the rhythm of the question environment, the 10 rules we covered in my last podcast series.

After we had done all this for a while, I said to her, "Do you remember the first question that I asked you?" She replied, "Well, yes, you asked me, 'How are things in Russia?'" She didn't remember the next question. So I said, "Do you remember I asked you, 'How was your flight?'" She agreed. I said to her, "What did I mean by those questions?" And there was a silence, which I ended by saying, "You can't possibly know what I meant by those questions. They're much too vague." Then I handed her a piece of paper that I had where I had the question, "How are things in Russia?" printed on it. This shocked her. None of us expect to see our conversations in print. None of us think about having our conversations picked apart. Then we talked about the question. The first problem with that question is, what is the general context? Since when? Compared to what? What part of Russia, it's a big country. So I handed her another page with those context issues printed out. The second problem with that question is, what is the nature of what I'm asking? What am I asking about? What category? Am I asking about the weather, or am I asking about the politics, the economy, the traffic, the museums? What am I asking about? And I handed her a piece of paper that added in those categories printed on it. Third, even if you can figure out which of those general categories I'm asking about, what is the simple and most direct answer? How is the weather? Good. How is the politics? Busy. How is the economy? Good. How is the traffic? Busy. How is the museum? Good. How is your work? Busy. How is the family? Good. That was what was printed on the next page that I gave her. Really, even those categories are too broad. Pick a category. Weather: What is a question that you can answer about the weather in a question and answer environment? How about, what is the temperature in Moscow today? The question is understandable. It passes muster under the rules, and the answer is one, either you know, or two, you don't know. "I don't know. I wasn't in Moscow today. I can tell you what the temperature was in Moscow three days ago." Or just, "I don't know." When did it rain last? How hot has it been? Have you heard a forecast for this weekend? Those are questions that are clear and simple enough to have answers. And I handed her a piece of paper with those questions printed out. They're several levels of analysis down from the broad question you can't answer. "How are things in Russia?" It's a wide gap, and it takes a lot of work to bridge that gap.

I then went on to discuss the other question. I asked, "How was your flight?" What did I mean by that? I went through a similar series of pages that we had printed out in advance. What context am I talking about? What flight? There was no nonstop from Moscow to where she was traveling at the time. Which flight am I talking about? Even if you know which flight I'm talking about, what category am I asking about? The length of the flight, the turbulence, the books she read, the food, the delay, the service? What am I talking about? You don't know. And as a witness, you need to know before you answer. Even if you can figure out the category, a simple, direct response is all you need to give. The length of the flight was long, the turbulence was OK, the book was long, the food was OK, the delay was long, the service was OK, and you're done. Even if you pick one of those categories of these questions, you need to narrow it down to a specific question that you can answer. Pick food. Did they serve the duck? What kind of wine did they serve? Did they give out those little hot towels? Those are questions that are answerable. Every witness needs to understand how far it is from "How was your flight?" to "Did they give out those little hot towels?" In order to be a good witness, they need to travel that distance to bridge that gap, and they need to make sure that the questioner travels that distance also.

The witness has the right and the responsibility to insist on clear, fair, simple questions, but they must understand the differences enough to exercise that right. No one else will do it for them.

This simple exercise made a dramatic impact on this witness. She went on to do an excellent and careful job in her testimony. I don't use this method all the time, but it can be used in almost any context. How are things of the office, the hospital, the facility? Plan ahead to ask the question up front and have it picked apart in writing, step by step, page by page. That sense of getting caught like that is a memorable one for a witness and an important reminder that is exactly what can happen to a witness when every word is under oath, transcribed and picked apart. The result can have a real impact, as a dramatic demonstration to the witness of how and why so much of what is appropriate in a normal conversation is in fact inappropriate in the precise and artificial environment of question and answer.