Daniel I. Small, The Daily Record Newswire
As a witness, to tell the “whole truth” means both the good stuff and the bad stuff. Both need to come out, and in many situations, the witness must take the lead in bringing them forward.
• The bad stuff
None of us is perfect, and most of us has things in our past that are embarrassing or difficult. The Internet, and its search engines, can make those things live forever. As a witness, some of those things may become relevant, or the questioner will try to make them relevant.
The key is to avoid making the situation worse by trying to hide or be defensive about those things. As prosecutors, we used the acronym BOBS: Bring Out the Bad Stuff. Whatever the issues are, a witness and his lawyer can deal with them. It will be much harder if they only come out after the witness has tried to cover up or gloss over the problems.
Witnesses need to be open and honest with their lawyers beforehand, and be prepared to Bring Out the Bad Stuff directly and openly. That will take away from the questioner the opportunity to make the witness look bad (and the problems look worse) by having to drag it out of the witness.
No matter what the problem is, no matter how large or small, it is always better to talk about it and prepare for it beforehand and bring it out willingly in testimony. Don’t give the questioner a gift he doesn’t deserve by adding the claim that the witness tried to cover it up.
• Be yourself
Too often, witnesses try to pretend that they are someone different from their true selves. The reality is that questioners, judges and juries are often pretty good at spotting a phony; once they think they’ve found one, that witness’s credibility goes out the window.
Everyone is uneven: We are better at some things than others. The problem is that we don’t like to accept, or admit, those differences. Yet they are all part of the truth of who we are.
I defended a doctor who was charged with criminal tax evasion, having failed to report and pay taxes on a large amount of money over a three-year period. There was no question that her tax returns were wrong; our defense was that it was not intentional.
As a professional, my client was extraordinarily intelligent, qualified and articulate. She had testified in court on other cases as an expert witness. Unfortunately, as talented as she was in her work, she was equally untalented in her personal life. Her finances and record-keeping were a terrible mess, and she was justifiably embarrassed.
In her defense, we had to show that part of her life to be the disaster it truly was, and to do that we needed her to testify.
A life of being the competent, confident expert made what would have been difficult for anyone sheer torture for her. She wanted to explain the mess, justify it, minimize it, blame others for it — anything not to look that bad in public.
It took a long time to convince her that all of that was phony, not who she really was. If the gap between what she did well and poorly was unusually large, that made her task as a witness more difficult, but not one that she could avoid.
In the end, she understood. She testified about how her disorganized finances had been a chronic problem and a constant source of embarrassment. Outside factors may have made things worse, but only because she was in such bad shape to begin with and didn’t change.
It was difficult, but it was clearly honest. After she was acquitted, the judge gave her a strong lecture on her need to get a good bookkeeper. Everyone agreed.
In many ways large and small, telling the truth means being yourself. That does not mean that you shouldn’t work hard in preparation to be careful and precise in expressing yourself. It just means that you cannot be a precise phony.
• The good stuff
Just as witnesses must take responsibility for bringing out the bad stuff, they must also bring out the good stuff about themselves, their work, those involved in the litigation, or other matters. The questioner will not ask; it must come from the witness.
For example, I have worked with a wide range of health care professionals. They get up in the morning, get dressed, have some breakfast, go to work — and then spend the day saving lives and helping those in need. After a while, to them it’s just what they do every day, nothing special to talk about. But to Juror No. 6, it is amazing, wonderful work, if it’s truthfully described.
That can only come from the witness. Every witness, in every profession and in all walks of life, has good stuff to talk about. An important goal of preparation is to find it and convince the witness that, for this one day, it is not “vanity” to talk about it. It is an essential part of telling the “whole truth.”
In a deposition, if the witness does not bring out the good stuff — and the best parts of your case — during the other side’s questioning, counsel can and should consider doing a direct of your own at the end. That creates good material that can be used at various points down the road.
Even at trial, if the other side designates portions of the deposition to read or show to the jury, many jurisdictions will allow counsel to cross-designate the good stuff from direct.
Nothing but the truth
In this environment, truth has a different and more precise meaning than it does in a normal conversation. Truth in a conversation is what you believe. If I believe that something is true, I’m not lying by talking about it.
But “belief” includes guesses, inferences, and all kinds of other things that stretch a precise definition of the truth.
Truth in the witness environment is strictly limited to what the witness saw, heard or did. Anything beyond that is speculation. Try to have a normal conversation during which all you speak about is what you saw, heard or did. It’s almost impossible and not the type of interaction that we pride ourselves on as conversationalists. But this is the truth in the precise and narrow sense that is used here.
Thus, a witness can testify to something if he “saw” it (witnessed it, read it, etc.); “heard” it (heard someone say it); or “did” it (wrote it, said it, took some action). Everything else is a guess.
So much of what makes us intelligent, interesting, intuitive people, and so much of what makes us good conversationalists, is based on our view of what’s in someone else’s head. Why did someone do something? What did he mean when he said something? How did he react to something/someone? It’s all guessing. We do it every day in normal conversation and take pride in it. Don’t do it as a witness.
“The truth, the whole truth, and nothing but the truth” is hard work, but it’s essential.
