Surprise! They taught us all wrong. We should be doing it so differently.

We've prepared witnesses for deposition and cross-examination so many times, we can do it in our sleep. Listen carefully to the question. Don't try to answer a question you don't understand.

We've seen it in the training videos. Answer only the question that's asked, not the question you think they meant to ask. Don't try to improve on the question.

We've heard it at CLEs and learned it in trial practice classes. Above all, don't volunteer information. If they ask you whether you were at Grand Central Station on Tuesday, the answer is "No"; not "No, I was there on Wednesday."

We've watched colleagues do this drill with innumerable clients in countless witness preparation meetings. If there's even a single word in the question you don't understand or if there's some ambiguity in the question, just say "I don't understand the question." Or say "Can you rephrase the question, please?"

We've given the familiar warnings. When the other side is asking you questions, that's not the time to try to win your case. Your job is simply not to lose it. Just answer the question they ask you. If there's other information you think helps your case but the question doesn't call for it, resist the impulse to volunteer it. If I think the information is helpful, I'll get it from you when it's my turn to ask you questions.

We've trained witnesses about what to do when their memories are impaired or deficient. It's not a sin if you don't remember something. If that happens, don't try to come up with an answer anyway. Just say "I don't recall." And if you don't know something, just say "I don't know." That's perfectly OK.

And we've cautioned witnesses about the big differences between testimony and conversations. Giving testimony is not like having a conversation. In a conversation, you're trying to engage the other person and get the person to be more interested in what you have to say. You say things that help the other person ask you more questions because you want the person to be more interested in you. But when you testify and the lawyer on the other side is asking you the questions, it's just the opposite. Avoid the temptation to turn it into a conversation. Keep your answers as short as possible. Don't elaborate. Just answer the question and stop.

We litigators have been preparing witnesses like this for so long that no one questions it. It's the bedrock of witness preparation. It's gospel. It's what good litigators do.

But before we give these standard instructions to another witness, we need to think about how slavishly adhering to them can harm our cases and cost us valuable opportunities to win them. And to do that, we need to consider how these instructions probably evolved and what purposes they were meant to serve.

The Standard Instructions

The standard instructions undoubtedly developed after watching witnesses make catastrophic mistakes. Hearing a witness say things that needlessly opened up a line of damaging questions must have led to the advice to answer only the question asked and not volunteer anything. Seeing a witness answer an ambiguous question in the way the witness privately interpreted it, rather than in the way someone else might interpret it, must have led to the advice that, if the question has even a slight ambiguity, just state that you don't understand it. To be sure, advice like that, standing alone and unadorned, logically addressed those concerns.

Then, as litigation became more combative and the stakes rose, our litigator predecessors saw how even the slightest deviation from a good answer could become fodder for exploitation by a wily opponent. Lawyers for witnesses would fear educating their opponents needlessly. Because clients lacked legal training and were unfamiliar with all the ways thoughtless answers could be costly, the clients needed more protection.

In depositions, some lawyers—many in fact—took to the practice of trying to insert themselves between the question and answer, transparently feeding the answer they wanted the witness to give.

Q: How many times did you go to the boat club in August? Counsel: Objection. If you recall.

A: I don't recall.

Q: Okay. How many times would you estimate you went to the boat club in August? Counsel: Objection. Don't guess.

A: I'd only be guessing and I'm not going to do that.

Q: All right. Let's try it this way. Did you go to the boat club more than once in August? Counsel: Objection, but the witness can answer the question if he remembers how many times he went to the boat club and in which months.

A: I don't remember how many times I went to the boat club in any given month.

Obstructive practices like these led to rule revisions forbidding lawyers from making speaking objections or other statements telegraphing suggested answers. But the fact that these practices developed at all exposed a fundamental attitude shared by many lawyers—that clients simply can't be trusted to give good or safe testimony. Many lawyers, if they could, would prefer to testify in place of their clients to avoid the problems flowing from ill-advised answers.

This insecurity is at the heart of how most lawyers were trained to prepare witnesses for deposition or cross-examination. It was not enough to tell the witness to answer just the question asked, not to volunteer information, and not to answer ambiguous questions. Without more, those instructions would not get the job done in a world that viewed a deposition or cross-examination as a minefield where the smallest testimonial misstep could cause an explosion from which the client would never recover.

Lawyers felt they had to condition their clients to view depositions and cross-examination in the same combat-inspired frame of mind. Don't be fooled if the lawyer who asks you the questions seems friendly. It's a sham. Make no mistake. He's not your friend. He wants to do everything he can to harm you and help his client. This is serious stuff.

Witness preparation thus became a survival training program from which clients could not graduate until they understood just how badly they could suffer from self-inflicted wounds. They had to see opposing counsel as an enemy whose every question was designed to lay a trap or strike a fatal blow. When clients distilled all the instructions, examples, and pep talks, they were left with the overriding impression that, as soon as they gave their testimonial oath, the less they said the better.

The witness was not there to cooperate with opposing counsel but to make opposing counsel's job harder. Questions avoided were bullets dodged. In a perfect world, if every question could be avoided, no glove would be laid.

In standard witness preparation, these subliminal messages are nearly unavoidable. And many litigators would probably say that's a good thing, precisely how a well-prepared witness should approach an interrogation by opposing counsel.

But lawyers who adhere to this conventional wisdom fail to see that conditioning witnesses to think like this reduces only some litigation risks while inviting other, potentially more dangerous ones. To be sure, the standard instructions reduce the risk of a witness uttering ill-chosen words; and, all other things being equal, avoiding ill-chosen words is better than uttering them.

But even the best prepared and smartest witnesses have no immunity from saying stupid things. How many times have you prepared a client for a deposition, believing you were clear in your warnings about saying too much, only to watch the client give an answer you wished you could have captured in your hands and stuffed back into the client's mouth, all while you sat poker-faced so as not to call opposing counsel's attention to it?

The conventional way of trying to guard against these risks is to repeat the instructions over and over again, drilling them into the witness's head in the hope that the more you say them, the less likely the witness will be to disregard them. Instead, the more you drill and the more you warn, the more you actually court a danger that could be far worse than seeing your witness phrase an answer the wrong way or volunteer something that goes beyond the scope of the question.

To read this article in full, please click here.

Originally published in the Summer 2015 issue of the American Bar Association's Litigation journal.

Originally published July 8, 2015

This update is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.