Continuing with my series on witness preparation and the "Ten Rules" for witnesses, one of the many unnatural things about being a witness is that often the most important person in the room is the only one who doesn’t say anything:   the person making the transcript or taking the notes.   A witness cannot “unring the bell.”   Once words come out of your mouth, they are committed to the cold written page, under oath.   Even humor and sarcastic remarks read like factual statements in a transcript.   Every word is there, for all to see, for all time.

What is the answer?  

Time

First, slow down and be precise.   Answer each question as if you were dictating the first and only draft of an important document.   (You are!) Consider each word carefully.   This is extremely difficult to do.   You cannot dictate a document this important quickly, casually, or “off the cuff.”   You need to be fully prepared, and then approach it with the right sense of pace, care, and precision.

Language

Second, be aware of the power of language.   When every word is transcribed and under oath, language takes on an extraordinary importance, far beyond normal conversation.   Then, when two or more sides are fighting over what those words mean, and each trying to use them for their own purposes, the problems multiply.   We must be aware of, and carefully consider, each word in the question.   Most language issues come within three interlocking worlds:   Jargon, Legalese, and English.

“English”

Open any dictionary at random, to any page, and you will see a basic truth:   there are very few “simple words”:   most have more than one meaning.   In the heat of litigation, those differences can be blown up in degree and significance.   If the witness is not 100% clear about how the questioner is using a word, they cannot answer the question.   If they answer, the questioner will assume their definition is the one in play.

One common tactic is for a questioner to try to bully their way through language problems.   Consider this exchange:

Q:     Who did you report to?

A:     Please rephrase the question.

Q:     What don’t you understand about my question?

A:     I’m not comfortable with “report.”   I had consultants and investors, but “report” sounds like I’m in the Army.

Q:     You know what the word “report” means, don’t you?

A:     Well, yeah.

The witness gave in to a question with the unspoken “you idiot!” at the end.   But when I spoke to her later, I said:   the issue is not whether you’re too stupid to know what “report” means (which was how she felt).   The issue is whether the questioner is too stupid to know that the dictionary has twenty-five different definitions of the word, and you didn’t know which one she meant! Be sure you know, before you answer.

“Jargon”

Every profession, industry, region, and endless other categories, has its own language.   We call it jargon.   In Webster’s words, jargon is “the technical terminology or characteristic idiom of a special activity or group.”   But like so many other words, jargon has multiple meanings.   When Juror #6 hears jargon, it comes across less as impressive technical know-how, and more like Webster’s next definition of the word:   “obscure and often pretentious language marked by circumlocutions and long words.”   Witnesses need to work hard to stay away from jargon, and to recognize when they fall back into it, and stop to explain.

Jargon interferes with communication in so many ways.   Jurors don’t understand it. They don’t like it and often feel it’s condescending.   It can make the witness seem cold and distant:   talking about human issues in dehumanizing terms. Lastly, its impact can go far beyond the words themselves: Juror #6 may miss the next several minutes of testimony, because he is still trying to figure out the jargon, and eventually may turn off entirely.    Help your witness to understand what kind of jargon he or she speaks, and how to avoid it.  

“Legalese”

In every case there are legal standards and concepts that have to be broken down from their confusing language, and explained in clear and simple terms.   Counsel must help the witness understand what they are, so they don’t stumble upon them blindly—or get lured into them unsuspectingly.   Then witness and counsel must be ready to deal with them during testimony.  

The greatest language challenges come when a word exists in the intersection of two or three of these separate circles.   When a word has different meanings in English, jargon, and/or legalese.   Then, it is particularly important for the witness to be 100% sure which meaning the questioner intended, or he or she cannot answer the question.

One quick example:   the seemingly innocuous word “manage” or “manager.”   In English it can mean a range of things:   from managing a sports team (where “manager” and “coach” can be either synonymous, or very different roles), to managing a checkbook, to managing to escape a dull party.   In the jargon of some businesses and industries, “manager” has a particular meaning—which may or may not mean the real “boss.”   In legalese, many state legislatures, in their wisdom, gave the corporate secretary of an LLC the name “manager,” even though such a statutory manager may only be there to sign documents, and have little or nothing to do with running the business.   Which meaning does the questioner mean?

Remember the most important person:   the Court Reporter. He or she doesn't know what the word means, unless either the questioner, or the witness, makes it clear.   Insist on the discipline of clarity.