In Part I of this series, I mentioned that there are four types of thinking and response strategies that witnesses must use if they want to avoid getting trapped by an attorney using the reptile strategy. They are:
Context
Qualifiers
Specificity
Absolute Disagreement
The best way to demonstrate how they work is to provide a few examples. Sometimes these thinking styles and response strategies can stand on their own, and sometimes they can be combined:
Context and Qualifiers
Q. Nurse, you would agree that the safety of your patients is your top priority, right?
A. Not necessarily. (qualifier)
A. That's not how I was trained as a nurse. (context)
Specificity and Context
Q. You would agree that you should never needlessly endanger your end users, right?
A. Could you be more specific? I don't know what you mean by "needlessly endanger." (specificity)
A. I'm not sure what you mean by that, any product can be misused in a dangerous manner."(context)
A. I don't know who is defining "needless," so I can't really answer the question as you put it. (specificity)
A. I don't know what you mean by "needlessly endanger," but I agree our products should do what they are designed to do." (context)
Qualifiers
Q. You would agree that it's a safety rule to document changes in a patient's condition, because if you don't, it puts patients at risk of injury or death, right?
A. I think you asked two questions, can we take them one at a time please? (Witnesses should always make attorneys ask one question at a time).
Q. OK...you would agree that it's a safety rule to document changes in a patient's condition, wouldn't you?
A. It would depend on the change. (qualifier)
A. It would depend on the patient. (qualifier) A. Not necessarily. (qualifier)
Outright Disagreement/Context:
Q. It’s the standard of care to keep your patients safe right?
A. No (disagreement)
A. No, that's not how nursing works (disagreement plus context)
A. That's not how I was trained (context)
A. No, that's not how I would describe the standard of care. (disagreement plus context)
Aside from keeping the witness from getting reptiled, the response styles above have another strategic advantage. They make the opposing lawyer's next decision difficult, because now he or she only has three options, and none are good.
Option I: Move on (the lawyer learns nothing else).
Option II: Ask for an explanation (if the witness is prepared correctly, the explanation will not help opposing counsel).
Option III: Keep hammering (if the witness is psychologically prepared, she’ll weather the storm, stick to her guns, and the attorney won't learn anything new. And, if the deposition is being videoed, the attorney will look bad).
In the context of witness preparation, it's important not to simply tell your witnesses, "there are four thinking/response strategies that will keep you safe from the reptile strategy... they are W, X, Y and Z." Rather, witnesses must practice analyzing difficult reptile-type questions in a realistic simulation of the deposition setting. It is important to remember as I outline here, there is a real learning curve when it comes to thinking about and analyzing cross exam/deposition type questions correctly and responding effectively. As such, the following are some principles that should be applied:
Set aside adequate time for the practice part of witness preparation.
Start more than a week from the deposition date when possible (to allow for follow-up sessions).
Start slow and easy - don't jump into the most difficult reptile-type questions in a rapid fire manner. Learning a new skill takes time and practice.
Provide feedback in a supportive manner. Don't show frustration or annoyance toward the witness as he or she attempts to learn and perfect this new skill.
Be patient.
Take breaks regularly during practice sessions.
Pay attention to the witness' psychological state (tired, frustrated, annoyed, etc.) and adjust accordingly.
Be willing to stop and resume on another day.
Always let your witness know when you are "in role" as you work through practice Q/A.
Allow your witness to make mistakes - that's how people learn.
Provide feedback when a witness does something well, not just when they make mistakes.
The concepts outlined above will be foreign to most witnesses, which means it will take time for them to adopt them and become comfortable incorporating them. However, with time, practice and appropriate feedback, witnesses can deliver strong testimony, even under aggressive reptile questioning.
For more ways to improve witness preparation, check out these posts:
Jeff Dougherty, M.S.
President - Litigation IQ
713 392 8135