When you read a good novel, you sometimes can’t wait until it’s made into a major motion picture. While the scale might be smaller in the legal publishing world, the benefits of extending an initial vision are parallel. In this case, it is a great article that has now become a great book. When Nutter, McClennen & Fish partner Kenneth R. Berman published his 2015 article in Litigation, “Reinventing Witness Preparation,” it caused a stir. I had several people forwarding the article to me within the same week with the recommendation that I read and write about it, which I did. Now, with the American Bar Association’s press, Mr. Berman has extended his thoughts into a 2018 book with the same title, “Reinventing Witness Preparation.”
True to its title, the book is not a general overview or an introductory manual on testimony. Rather, it is an argument: a now-extended and detailed case calling for a revised approach to testimony and preparation. The crux of the idea is that conventional methods of witness preparation emphasize attorney control over witness competence, telling witnesses to stick to rigid rules and to say as little as possible instead of speaking for themselves and applying the kinds of common-sense interpretation, elaboration, and self-defense that a present or future jury would expect. The book makes that argument and applies its implications to the full spectrum of the issues that influence witness credibility and effectiveness. Following suit, my review is also more of an argument than an overview. My argument is that any litigator, client representative, or consultant who regularly meets to prepare witnesses owes it to themselves and their clients to buy, read, and use this book.
The Main Point: Capable Independence Over Defensive Control
The main benefit of Mr. Berman’s book is that it challenges the conventional wisdom as it applies to what is one of the most common activities of a modern litigator — It isn’t persuading a jury, more likely than not, it is preparing a witness for deposition. That is where the standard instructions to give as little as possible, and to consign too much to the categories of “I don’t understand” or “I don’t recall,” emphasizes a bunker mentality that ends up restricting good answers as much as it ends up limiting mistakes.
As I wrote in response to the earlier article, it comes down to the question of whether you are going to trust the witness or not, and the related question of whether or not you are going to prepare the witness enough to be trusted. There are many situations where a controlled witness is going to feel safer, but is going to be a lot less effective than a prepared and empowered witness.
“The point is that lawyers need to approach witness preparation in a new way, moving away from the model where witnesses, when questioned by the opposing lawyer, are taught to clam up and yield as little information as possible,” Mr. Berman writes. “Lawyers need to move toward a model that gives witnesses the skill, confidence, and frame of mind to answer the questions in ways that will help their cases, develop their case themes, and get their stories out.”
Using a number of examples from high-profile cases — Bill Cosby, Ken Lay, Bill Clinton, Tom Brady, Bill Gates, and many others — Kenneth Berman provides a deep dive into many of the testimonial problems that can occur with a witness following the conventional advice. The top take-aways from the text are:
- Don’t just say “Yes” or “No” to an adversary’s framework and choice of words; choose your own words instead.
- Make your best answer at the first opportunity, instead or waiting for your attorney to clean it up.
- If a question has only a little ambiguity, clarify the meaning in your answer instead of saying, “I don’t understand.”
- Answer in a way that references the purpose of a question, and not just its literal meaning.
- Volunteer information when it is germane to the question and helps to advance your case.
- When you have a less-than-perfect recollection, answer in a way that reflects that, instead of defaulting to “I don’t remember.”
As I have written recently, applying this advice isn’t simple and often a matter of finding the right balance, and that in turn requires some work.
The Application: A New Way of Working
In fairness, I’d say the focus is not entirely new. One bit of good news is that the conventionalist system Berman describes seems to be already on its way out. I do meet some attorneys who are all about control and limiting the record, but I see more who understand that a good witness will often need to answer on her own terms and in a way that proactively helps her case, even if that sometimes strays beyond the simple “Yes” or “No.” It may be that I work with particularly enlightened attorneys (and, for any clients reading, let’s assume that’s the case), but I do generally see attorneys working to prepare witnesses in a way that isn’t just a matter of learning and applying strict rules, but is instead a matter of developing sensitivity, judgment, balance, and discernment.
Actually doing that well, however, requires a particular style of witness preparation that is proactive, hands-on, and practice-based. Under the enlightened style Mr. Berman advocates, the preparation becomes even more important, and more involved. It is not just a box to check off — “they’ve gotten the message,” — but an opportunity to train witnesses to understand the nuances and find the balance between “too much” and “not enough” on a number of fronts. It takes time and practice.
The Implication: Where Do We Go from Here?
The implications for litigators, consultants, and in-house legal departments: Get the book, read it, and think about how to apply it for your own witnesses.
But there is one other layer of implication: Understanding the advice is one thing, and actually doing it is another. That difference applies to the witnesses themselves, of course, but it also applies to attorneys and others who prepare those witnesses. Lawyers who are used to control need not just an understanding of this more permissive approach, they need practice in how to work with a witness in order to execute it carefully and effectively. Easing that control will be tough for many litigators.
I began by talking about books that get made into movies, and while that probably won’t happen in this case, what I do hope for is a book that gets made into a CLE series. As a supplement and application of the message so completely laid out in this text, there should be hands-on practical seminars where lawyers can learn to safely let go of some of their control, help prepare a witness who isn’t just following rules but is confidently and capably taking the reins for themselves.