Be careful with documents and prior statements

 Daniel I. Small, The Daily Record Newswire

The witness is just settling into the deposition, starting to sense that there may be light at the end of the tunnel, when the questioner pulls out the first document. She waves it around with great flair, asks a few “isn’t-it-true” type questions and slaps it down on the table.

Even the most intelligent, articulate witness is lost. OMG, the witness thinks — she’s got a document.

All witnesses need to be prepared to deal with documents: to be careful with them and not be afraid of them. It’s not an easy task.


With any document, there are three basic issues: credibility, language and context.

Is the document accurate? More importantly, does the witness know if it’s accurate? Is the questioner quoting the document accurately: the exact words, the full sentence or paragraph, the question to be answered? And even if the questioner quoted the language correctly, did he or she put it in the correct context? What else does the document say on this subject?

1) Credibility

The dictionary defines credibility as “worthiness of belief.” To a careful mind, that process of judging whether something is truly worthy of your belief — particularly under oath, and on the record — ought to involve a rigorous examination. Yet we all tend to place magic into documents. If it’s written, it must be true. Even the most firmly-held memories or beliefs waver in the face of mere ink on recycled paper. It makes no sense, but it happens all the time.

The question is simple: Does the witness know whether or not the document is accurate? If not, don’t let him assume anything! No document can change a witness’s reality. Documents are just mechanical ways of putting what we think on paper, and they are only as accurate as the knowledge, bias or beliefs of the writer. If the writer is the witness, perhaps the witness remembers the document, and perhaps the witness remembers whether what it says is accurate. If the witness did not write the document, there is little that he or she can truthfully say about it.

Several years ago, while traveling, I was working late in my hotel room to get ready to meet with a witness and counsel. I had the TV on in the background and heard something about a mining disaster in West Virginia. The next morning, I was running late for my meeting, so I did not listen to the radio or watch TV. However, as I left my hotel room there was a copy of USA Today on my doorstep, with the dramatic headline, “12 Miners Found Alive.” It even had a picture of the joyous faces of the family members. Walking into my meeting, I exclaimed to all, “Wow, great news about those miners!” Except that it wasn’t true — and everyone else in the room knew it. For a brief period late the previous night, which happened to coincide with the deadline for USA Today’s hotel edition, there was a report that they were alive. But it was a false report, a mistake. By the time everyone else in the room got later newspaper editions or the news from the TV or radio, it was clear that it wasn’t true. All the miners were dead.

I show that headline to virtually every witness I work with in any case where there may be documents. There it is: an impressive document. No one was trying to lie or deceive; on the contrary, they thought they were sharing wonderful news. And yet it is completely false. I show the headline to witnesses in the hope that they will think of it every time they are shown a document, and ask first, “Do I know whether this is credible?”

2) Language

The great Yogi Berra once said, “I didn’t really say everything I said.” That, in essence, is what the witness must make sure. Are the words from a document being quoted accurately, or have they been paraphrased, edited, or distorted? Beware of questioners who want to be “helpful” by trying to “summarize” or “highlight.”

Do the words being quoted from a document, upon clear reflection now, accurately reflect reality? Email has created a world in which we type in haste and repent at leisure. Did whoever wrote or said those words really mean it that way? Was the witness, in 20-20 hindsight, accurate? If not, make sure she says so.

3) Context

When talking about communicating, who better to cite again than Yogi: “It ain’t over ‘til it’s over!” Has the questioner taken the words out of context, are they explained later in the document, is the document part of a series or chain?

At a recent meeting with the government on an investigation, we were presented with copies of emails from sales people in the field urging the company to engage in the same questionable practices their competitors were doing. Troubling stuff. But when we went back to investigate further, we found that several of the emails were just one step in a chain in which company executives adamantly responded that they could not engage in such conduct, that they would not “stoop to that level.” Without context, the words raised suspicion. In context, they were clear and helpful. Insist that your witness knows and understands the context.


The goal is to level the playing field, since the questioner knows what portions of what documents he or she will use and has studied and prepared in advance. The key is to learn a process and discipline that allows the witness to take his time, consider the whole context and answer precisely. A document is simply a mechanical way of putting something on paper. Treat it mechanically. There is a very simple, three-step protocol for dealing with any document. Follow it absolutely with every document or statement. The simple mechanics of the process will comfort and focus a witness on the substance.

Anytime a witness is asked a question to which the answer is contained in or relates to a document:

1) Ask to see it.

Documents are like questions. You must make sure that you understand the whole thing. You would never (or certainly should never) answer a question when you only heard a part of it. Similarly, a witness should not answer questions about a document without having read and understood all of it, nor volunteer the existence of a document. If asked a question about a document (or about something that is contained in a document), a witness’s first step is to ask to see it, politely but relentlessly.

I am constantly amazed at how often witnesses and their counsel allow themselves to be drawn into a debate with a document that is not in front of them. How absurd and unfair. How can witnesses possibly win that debate? The best they can do is tie and eventually lose. Do not get drawn into such a debate. Ask to see the document!

Understand that in most forums, the questioner is not required to show the witness a document. However, if despite your clear request, the questioner chooses not to show the document, he or she has chosen to allow the witness to guess. In that case, a more than adequate response is, “Gosh, I’d really need to see it. Without seeing it, my best guess is … ”

2) Read it.

Tell a witness to pick up the document, block out everything else in her mind and examine it as if for the first time, no matter how long it takes, and regardless of whether she saw it in preparation for testimony, which generally is none of the questioner’s business, as such discussions were privileged and confidential.

Every time a witness reads a document, there is something new to see, so it’s always worthwhile to read it again, especially with the advantage of having heard some of the questions.

Understand that some questioners will try to discourage such a thorough review. They are often only interested in the particular section, page or line that helps their position, not the full context. But the witness is in control and has a right to clear and fair questions.

3) Ask for the question again.

Once the witness has given the whole document careful consideration, he should put it down and ask to have the question again. Now he can focus not just on the words the questioner may have picked out, but on the whole portion of the document related to that issue.

Think about it. A document that may be important to a questioner now may have been unimportant to the witness when he wrote it months or years ago, and little more than a blur now. Let’s say that you write a rough average of five documents per hour during an eight-hour work day (if you include memos, emails, texts, etc., it’s probably many more). That’s 40 documents a day, five days per week, roughly 50 weeks a year. Pretty conservative numbers for many people, but they still mount up quickly. If a questioner asks about something a witness wrote only a year and a half ago (in some matters, the gaps can be much longer), that means he’s written about 15,000 documents since then. Taking that into consideration, it’s much easier to understand why one might not remember one particular document clearly. That may not be what the questioner wants to hear, but it’s the truth. Be careful with documents.

Prior statements/testimony

People sometimes act as if prior statements have magical powers. However, a document that claims to represent a prior statement or testimony, whether a witness’s or someone else’s, should be treated just like any other document. A witness should ask to see it, read it carefully, think about what it is and understand what the questioner is trying to do with it — then ask for the question again.

There is no magic to this, just patience and discipline. A witness’s job is to answer questions based on the facts, not on what someone might have said before.

To respond to a question based in any way on a prior statement or transcript, the mechanical process is identical to any other document. Into that process come three important concepts regarding prior statements:

1) Insist on clarity.

2) Understand the context.

3) Remember that everyone says things differently.

A witness has the right to question the questioner and the responsibility to do so carefully when someone tries to force agreement with a prior statement.

Take the weight out of prior statements. Remember the child’s game of “telephone?” One child starts by whispering something to the child next to him or her, who passes the secret to the next child, and so on all around the circle. When the last child says the message out loud, it’s often hilariously different from the original. Prior statements can be like that.

If a witness disagrees with what someone else said, was wrong before or simply remembers it differently now, she should just say so. It doesn’t mean that anyone is lying, just that there are always differences in memory or perception. Even if she knows she purposely said it wrong before, she should talk to her lawyer. Often there is an explanation that is important to bring out. If it’s just a normal mistake, she should clarify, answer the question simply and don’t be defensive.

We take a bunch of trash, recycle it, grind it all up, mix in a bunch of stuff and out comes … paper. These days, it’s basically a waste product. A mechanically made product to mechanically record whatever someone wants. Take the magic out of it. Treat it mechanically. Follow the protocol and don’t be intimidated by a piece of paper. 


Daniel I. Small is a partner in the Boston and Miami offices of Holland & Knight. A former federal prosecutor, he is the author of the American Bar Association’s “Preparing Witnesses” (3d Edition, 2009). He can be contacted at