Updated: May 18, 2020
One of the greatest fears witnesses have prior to testifying in a deposition, and even more so in front of a jury, is that their words will be used against them and they'll end up trapped, with no escape. They typically don't mean that they're afraid that telling the truth will somehow harm the case or get them into legal trouble. What they are afraid of is that opposing counsel will use some rhetorical strategy to trap them in a way that they'll be forced to say something they don't believe, admit to something that isn't true, or contradict their own words or previous testimony. Essentially they are afraid they will be made to look like a fool, a liar, or both.
This is a reasonable fear and unfortunately it happens to witnesses every day all across the country. But it doesn't have to happen.
Why Do Witnesses Get Trapped?
Since most of the trouble occurs either in the deposition or during cross-examination at trial, we will focus on witness testimony derived from questioning by opposing counsel. Most witnesses have never testified, so they treat communication in the litigation setting the same way they treat professional and social communication. The problem with this strategy is that professional and social communication settings typically aren't adversarial, they aren't under oath, and they aren't rife with rhetorical traps that need to be identified and avoided.
How Do Witnesses Get Trapped?
One of the key reasons using normal communication strategies in the litigation setting sets witnesses up for failure, is the casual way most people handle questions that have an implied "absolute" in them. For example, in the real world, if I were to ask someone if basketball players are tall, a reasonable answer would be "yes." But is "yes" the right answer? No, it's not. Why? Because there have been at least 24 basketball players in the NBA under 6 feet tall. In the real world these few exceptions don't really matter, but in litigation they do. So in the litigation world, the same question under cross-examination might produce the following exchange:
Q. Are basketball players tall?
Q. Is a 5 foot 3 inch man tall?
Q. Are you familiar with Muggsy Bogues, a 5 foot 3 inch tall man who played for the NBA?
A. Yes... But...
Q. You just testified that basketball players are tall, so are you saying Muggsy Bogues wasn't a basketball player?
Q. Then were you lying when you said that a 5 foot 3 inch man isn't tall?
Q. Then were you lying when you testified that basketball players are tall?
A. No... But...
Q. Ok, I'm confused, then is it your testimony that a 5 foot 3 inch man is tall?
A. No.. But...
Q. It was a yes or no question...is a 5 foot 3 inch man tall?
A. Um... I... I don't know, I mean no.
Q. Let me ask you this: Are you familiar with the following men who range from 5 feet 5 inches to 5 feet 9 inches in height: Earl Boykins, Spud Webb, Nate Robinson, or Calvin Murphy?
Q. Would you consider any of them to be tall men?
A. Um...I don't know. I mean, I guess not...
Q. So based on what you just said, none of these men could have been basketball players correct?
Q. Would it surprise you to learn that all of these men played professional basketball in the NBA?
A. I don't know. I guess not.
Q. But didn't you testify earlier that basketball players are tall?
Q. So according to your testimony, none of these men could be basketball players right?
Q. Well then is it your testimony that none of these men played in the NBA?
Q. But you just told me under oath a few minutes ago that basketball players are tall didn't you?
Q. So you really don't know anything about basketball or height do you?
A. That's not true.
Q. We will let the jury be the judge of that.
It gets ugly fast. The "witness" in this example was boxed in with no where to go. Unfortunately question and answer sequences like this happen all the time in depositions and at trial. The basketball example is mundane, but what if a similar question and answer sequence happened in a lawsuit in which someone has been seriously injured or killed, and a corporate representative gets similarly trapped in his deposition or in front of the jury? And what if the topic concerns safety training, personal protective equipment, safety devices, or warning labels? It would be a catastrophe.
Witnesses can avoid getting trapped in a box like in the basketball example, but it requires learning a new way of thinking.
How Should Witnesses Think About Questions from Opposing Counsel?
An important analysis every witness must conduct before answering any question from opposing counsel is determine if the question is a fact question. If it is, then "yes" or "no" is a safe answer. If it's not a fact question, it's a question that requires judgement or context. The problem for witnesses is that the judgement/context questions will still be asked in absolute terms (yes/no, agree/disagree/true/false) and witnesses therefore answer in absolute terms.
An exercise that helps witnesses think about each question correctly and parse the fact questions from the judgement/context questions is to literally ask themselves (silently): "Are there any exceptions – no matter how remote – to what opposing counsel is proposing?" If there is even just one exception, the witness must not answer with an absolute (yes, agree, true).
Let's look at some examples of variations on the basketball scenario:
Q. Are there tall basketball players?
A. Yes (is a safe answer because it affirms an unchangeable fact - there are tall basketball players).
Q. Are basketball players tall?
A. Yes (is the wrong answer because there are exceptions, but "no" is also the wrong answer). So what's the right answer?
There are various right answers to the question "Are basketball players tall," all of which are true and all of which keep the witness from being boxed in. Examples include:
Not all of them
These answers seem obvious, but for most witnesses they are not.
In practice it gets a little more complicated because opposing counsel uses various rhetorical devices to increase the likelihood that the witness won't distinguish the form of the question properly. For example, a common technique is to ask many fact questions in a row to which the only answer is "yes" and they do so with a quick pace. Once the witness is in "yes" mode and answering quickly, opposing counsel goes in for the kill and slips in a question that feels the same as the previous questions and seems to follow logically from the previous answers BUT actually requires judgment or context.
Q. You're familiar with the game of basketball aren't you?
Q. You're aware that the rim is 10 feet from the ground right?
Q. You would agree that being tall can be an advantage when playing basketball right?
Q. You would agree with me that most basketball players are taller than average right?
Q. You would agree that coaches and owners of NBA teams want the best players in the world right?
Q. You would agree with me that most players considered to be the best in the world are taller than the average man right?
Q. You would agree with me then that the best practice when drafting players for the NBA is to always choose tall players?
Again, since there are exceptions to the last question (you wouldn't pick a tall bad player over a short good player like Spudd Webb), the right answer cannot be "yes," or "no," it has to be some variation of the following, otherwise the witness will become trapped:
The prescription outlined above might seem obvious if you are an attorney, but if you are a witness it's anything but obvious. Witnesses are not used to looking for the problems with questions they're asked, nor are they comfortable leaving an answer at "not always" or "it depends." It runs counter to everything they're used to professionally and socially, and it feels evasive. However, with hard work and practice under rigorous Q/A simulations, it eventually clicks, making it possible for witnesses to not only survive, but thrive in the face of adverse questioning.
For more advice on how to improve witness preparation, check out these posts:
Jeff Dougherty, M.S.
President - Litigation IQ
713 392 8135