Recently, I was deposed and later testified as a witness in an arbitration. Yes, that’s right – I was a witness, and someone else was the lawyer. It was a role reversal that truly changed me as a trial lawyer.
I can’t talk about the specifics of the case for confidentiality reasons. But, generally speaking, the dispute was this: my client asked someone else to pay the cost to settle a case. The someone else didn’t want to pay. The someone else didn’t want to pay, because they believed I gave my client the wrong analysis of the basis for payment. Dispute ensued, arbitration followed, lessons were learned.
Trust. I am a serious control-freak. I am terrified to fly mostly because someone else is flying the plane. It does not matter that part of my brain comprehends the illogical premise of this fear; it’s still there. So, I was none too pleased to put my client’s fate – and to some degree my fate – in the hands of another lawyer. I mean – I may not know how to fly a plane, but I know one or two things about the lawyer stuff. Yet, I had to do it. I wouldn’t storm the cockpit of the plane at the first sign of turbulence no matter how bad I might be hyperventilating. So, I knew I had to surrender control of the case to my lawyer, or the case was going to crash. Bear in mind, that doesn’t mean I wanted to do it.
This made me realize (or – more accurately – reminded me) that clients do not trust you just because you’re a lawyer. I’m sure some of you are saying, “Duh. That’s not some brilliant insight.” Except that it is. If you are a lawyer, think seriously about your last few new client meetings. How much consideration did you give to truly building your client’s confidence in your trustworthiness? No matter how well-educated you are, how successful you’ve been, or how well-known your law firm is, clients don’t trust you right out of the box no matter how confident they might be in your abilities. The trust part of the attorney-client relationship is earned. Your resume is the reason you (or your firm) got hired in the first place; it’s not the reason the client keeps you around. Don’t walk into a new client meeting assuming you are smarter, know more or are better prepared than the client. Free your mind of generalizations, stereotypes, gender roles and age or experience gaps and remember one hugely important thing: you and your client are human beings with actual feelings. If you think you’re nervous, it’s a sure thing that the person sitting in the client chair is scared to death no matter how brave a face she puts on. What a client wants isn’t so much for you to impress her with how much law you know but for you to listen to and hear her. Your client needs to know you’ve got her back. That’s what builds trust. Without it, the client will (consciously or not) withhold important information from the lawyer, and that will always leave the lawyer at a dangerous disadvantage in defending or prosecuting a case. There’s a reason counselor is a synonym for lawyer, and it’s not coincidence.
Preparation. I truly thought I knew how to prepare a witness for deposition or trial testimony before this experience. I even thought I did a good job at it. Now, I know I overestimated myself.
Until you sit in that witness chair for eight hours, having your work or actions questioned, misrepresented, twisted, maligned, skewed and then questioned again, you cannot possibly appreciate what a physically and mentally taxing experience it is for the witness. The best analogy I can give comes from golf. When you walk up to the tee, you must consider so many things before swinging that club: the fairway, the hazards, body alignment, grip strength, swing speed, wind direction, and optimal shot position. You can’t stand in the tee box all day contemplating these variables — there are players waiting and only so many hours of daylight.
Being a witness is a lot like being a golfer — there are (too) many things going on at once: listen to the question, process what’s asked, focus on answering the question accurately, avoid volunteering information or over-answering, anticipate the next question, wait for objections and try to interpret what guidance you might from them, keep your emotions in check, speak clearly, and do not talk over anyone else. Now, do all of this with sufficient speed to avoid any awkward gaps or pauses in the testimony that might make a listener think you’re concocting an answer instead of stating facts.
It’s really damn hard. First, the witness will be nervous, especially if never been deposed before. It didn’t matter that I’ve taken more depositions than I can remember or that I was confident in the correctness of my position going into the deposition. I still barely slept the night before, I choked down my coffee the morning of, and I was sweating by the time I sat down next to the court reporter. Nervousness makes it very hard to remember and follow all the directions you’re given, no matter how many times you’ve heard them. Second, at some point (if not immediately) the witness will feel defensive. Who among us likes to have our competence or veracity questioned? Defensiveness is a natural and hard-to-control reaction to someone expressing or implying that you’re lying or stupid, and that feeling is also bound to make following directions near impossible. Third, testifying is tiring. The average adult has an attention span of about 17 minutes. The average deposition takes about four hours. Witnesses who are nervous, defensive and exhausted are probably more dangerous than a drunken toddler wielding a kitchen knife near a light socket.
Allow me to make my (paraphrased) deposition testimony Exhibit A:
Q. Is it possible you meant [to say the sky is green] when you wrote this?
A. Counsel, I’ve told you five or six times now that I don’t remember writing these words. I’m not going to guess at what it means. I don’t remember.
Q. But, I’m just asking you whether it’s possible that’s what you meant.
A. I’m not going to guess. You’re entitled to my best estimate, but I don’t have to guess.
Q. But, I’m just asking whether it’s possible. You know whether it’s possible, right?
A. Sure. I might win the lottery tomorrow, too.
It’s a stupid exchange that ended in me conceding what was ultimately an irrelevant point. But, I still gave in. My frustration and exhaustion allowed me to let my snark flag fly despite years of training to avoid exactly that. Yet, I somehow expect a witness — whose job is not being a witness but doing whatever else that person does for a living — to magically follow the deposition rules perfectly the first time out of the gate. That would be like asking my legal writing students to start the class by taking the final. Every once in a while, someone might be a natural and knock one over the fence. Most of them, though, will fail and miserably so.
There is only one sure way to help a witness overcome the unfortunate side-effects of exhaustion, defensiveness and nervousness (or its unhappy cousin — arrogance): conditioning.
You must examine and cross-examine your witness over and over again ahead of time. Don’t just sit together for hours pondering documents or speculating about what the witness might be asked. Depose your witness. Cross-examine your witness. Ask the difficult or even nasty questions that will be asked at the deposition or at trial. Try to impeach the witness. Make the witness actually experience what’s going to happen the day of testimony. Have another lawyer or a paralegal who’s good with the rules of evidence sit in to make objections to your questions so that the witness experiences the interruption and learns how to respond to it. Show the witness documents in the context of how he or she will be questioned about them. Question the witness about prior deposition testimony. Engage this process for as many hours as you can so you and the witness feel the experience, too.
Preparing this way does double duty. It enables the witness to appreciate the emotional, physical and mental experiences of testifying in a way that no amount of discussion can. It also helps the lawyer identify the strengths and weaknesses in the client’s case and testimony. Lawyers come from the same species as jurors. (I swear, it’s true.) If a witness’s practice testimony leaves you with a sense of accomplishment, that’s probably going to be the jury’s take-away, too. Conversely, if the practice testimony fills you with dread, you have a chance to polish as much as possible to minimize damage. But, you can’t possibly assess these things in the abstract, and you sure as hell don’t want to find this out during the real show.
Faith. As a lawyer, I’ve been frustrated with the occasional vagaries of the legal system. Despite a judicial error or wayward juror here or there, I believe the system works, because — more often than not — it does. (And, I’m speaking here philosophically — we can talk about whether the actual mechanics of our underfunded and oddly organized state court systems “work” another time.) There is, however, no substitute for putting your fate in the hands of that system to truly test the strength of your conviction in its functionality. From my witness experience, I gained a profound appreciation for what it is we ask a client to do when the client submits its financial, business, mental, emotional, physical or familial future to the decisions of one or more people who can know only precious little about the experiences that led the client to that courtroom.
I am a better lawyer for this experience. I will be more conscious of my role not just as a legal adviser but as a counselor, a cheerleader, a gatekeeper and a teacher. I will assume less and listen more. I will include patience and sympathy in my hourly rate. I will earn trust, I will proactively practice preparation and I will build faith. I will also forever wonder why being deposed or cross-examined wasn’t part of the “performance tests” on the Bar exam …