Author Richard Solomon is a conflicts and crisis management lawyer with 50 years of experience in business development, antitrust and franchise law, management counseling and dispute resolution including trials and crisis management.
Dispute resolution management requires realism and maturity. People, and their lawyers who think that they can prevail despite the facts, despite the law, and that all they have to do is tell the story a certain way, usually fail. Sometimes they get away with murder, but it is very rare. Justice usually works the way the justice system is intended to work. And that is even more reliable in business disputes where the burden of proof is simply that your side of the case is more appealing that that of the opponent. More appealing in this context is not just a sympathy contest. More appealing really means that what you are telling the judge, jury or arbitrators is corroborated by extrinsic evidence that was created when there was no dispute, usually in the normal course of business -- what you honestly wrote about what was happening at the time it was actually happening.
True, there are companies that have such a bad reputation that even the truth won't help them, and it is a delight to sue them in their own home towns where everyone knows them and their prospect of picking an unbiased jury is slim. But that usually isn't the case. Nor is it usually the case that 'home cooking' spoils the prospects for the correct result. Sometimes that happens. Usually it does not.
Where does that leave us? It usually leaves us with a level playing field in which the correct result is the most likely result. The purpose of this article is to suggest that it is probably not going to be possible to change that by concocting fanciful stories contrary to the true facts. On the criminal side, executives can rob a company and its shareholders and employees blind and get away with 'I did nothing wrong!' or, if they are 'society criminals', a light sentence in a country club prison. On the civil side it is a different story. One critical reason is the difference in the burden of proof. Another critical reason is that on the civil side they are confronted by a better class of opposing counsel -- one who probably can expect compensation only if he wins -- an arena in which razor sharp cross examination is the rule, not the exception. Arrogant executives to whom everyone has always been afraid to tell the unvarnished truth without polishing it to reflect positively upon their ego often get their comeuppance because they can't imagine anyone having the unmitigated gall to challenge their veracity and shove their own paperwork up their ass in a public forum. But, as they learn too late (and for which they blame their lawyers, not themselves), shoving your corporate records up your ass in broad daylight in front of a crowd of people is what a good trial lawyer does for a living.
In almost forty years of trying business cases, I have so often seen disputes that should have been resolved reasonably and properly long before trial, go to trial because someone who did something wrong, mistakenly or intentionally, was insisting that the facts be found and the result be rendered in his favor no matter what. And since that kind of person will pay anything to 'have his way', he is fair game for any lawyer who will pretend to agree with him for the purpose of generating a big fee. Later, when everything has come a cropper, the lawyer will simply say that the judge ruled incorrectly and we should appeal (also stupid in almost every instance); the witnesses against us were lying; the jury was crooked; opposing counsel rigged the result; and any number of other stupid excuses. Then, of course, the fractured executive will go find another lawyer and tell him to sue the first lawyer for malpractice. And the cycle may go on and on. It just depends on the degree to which ego rules over intellect.
I have my own way to evaluate a case and to prepare a witness. I am absolutely brutal on my own side of the case. If it can pass my sniff test, it will probably pass that of any judge, jury or arbitrator. And if it can't pass my sniff test, I tell the client about my concerns. The client can then consider my advice and seek a reasonable resolution, or look elsewhere for more credulous counsel. In my experience, if you are forthright about the situation early on, and have not called everyone on the other side a no good son of a bitch, rational resolutions are readily available and, in the long run, much less costly. If we have a good case, and the opposition cannot be convinced of that, then we do have to go to trial, and we have to have our people testify in a way that makes them practically immune to effective cross-examination. How you go about doing that is the lesson of this tutorial.
People come in all varieties of personality. The most scrupulously honest person may be the most boring, confused, frightened individual who, though he would only tell the truth, would tell it so badly that his testimony is worthless or worse. Among the sentiments at work in the mind of a potential witness are, in addition to an inclination to truthfulness, fear of being embarrassed; for embarrassing others and his company; for not being able to provide affirmative support for his side of the case; for his position in the company should he be seen not to have been helpful; for his financial future; for his references, promotions; for his being included in significant projects; for his dignity; for his family; for his masculinity; for ... the list could go on and on. Is he boring? Is he a smartass? Does he have nervous tics that can be interpreted adversely? Does he get quickly to the point or wander around it forever? Is he into self-justification? Is he ostentatiously religious? Does he have his own agenda? Is he intelligent? What are his language skills? What are his reasoning skills? Does he try too hard to please, either you or, when the time comes, opposing counsel? Will your time spent trying to help him be simply truthful be seen as an inappropriate attempt to coach your client's agenda? Does he fear you are trying to make him someone other than who he really is, and that he won't be able to do it the way you want.
If the witness is the high panjandrum who is always treated with deference to an extreme -- used to having his own way - there is another cart full of baggage to be accounted for. In my experience, even if they superficially portray an air of modest pliability, just beneath the surface is a thick layer of 'How dare you?' With this person the relationship building is tougher, because he can fire you and find a 'real' lawyer who appreciates who this person really is and how he is to be treated. His ego is engaged far more than any other witness in the company. He expects to appear for a deposition and at trial and have the judge, jury and opposing counsel rise when he enters the room, and that he will be able to control the questioning, not the lawyers or the judge. If you have never seen such a person on the witness stand, you have missed a spectacle. When his side loses, his analysis is that the company's lawyer would have won if he had just 'put me back up on the stand'. Yeah right!
All these and many more fears and attitudes are strongly present in the mind of a potential witness. They will have a physical effect upon him. They must be recognized and addressed in an effective relationship-building manner, so that in the end you have built confidence and trust, not fear and loathing.
The central goal of all you do to prepare a witness to testify has to be to show him how to tell the truth in a way that is obviously truthful. One by one you must help him overcome each of his fears and each of his adverse tendencies. You must spend time with a witness. You must show him how to do his homework. And you must do it before he testifies in his first deposition, as changes in testimony later on may be used to impeach credibility, comparisons of his trial statements against his prior, seemingly or actual, inconsistent statements. It is not an issue of rote memorization. That is almost as bad as ineptitude. The goal is that he knows what the truth is and how best he can state it with the least fear of confusion or of being ambushed on cross-examination.
These thoughts presuppose that you will be candid with a client or potential client once you have evaluated his position based on the available evidence. If you will continue to tell folks that they are on the side of the angels when it is clear that the other side has something significant supporting it's position, and don't aggressively promote amicable resolution, then you need not read any further. When Arthur Anderson accounting shredded documents regarding Enron's business, in the face of an obviously oncoming SEC and grand jury investigation, some fool concocted a position that they weren't doing that to conceal evidence or obstruct justice, but they were 'just' complying with their records retention policy. If you are at that level of stupidity, you are counting upon a jury of idiots, which, of course, Arthur Anderson didn't get. And, amusingly, it was some dumb lawyer who concocted that scenario for the company. Delusional lawyers and desperate clients concoct fanciful stories that are not worthy of belief and try to sell them to a room full of ordinary folk with ordinary common sense. Most of the time it bites em in the ass. This article is not for such people.
We are now at the point at which our investigation about our client's position is telling us that we have a sound evidential and legal position, and we are not getting anywhere with initial efforts at reasonable settlement. People will have to be deposed. Now is when you prepare for trial -- not prepare for a deposition -- prepare for trial. To me the deposition is the trial. I want my people to be as good in the deposition as they will be expected to be at trial. If that can be accomplished, the deposition transcript will not be useful in the witness' cross examination, for there will be no prior testimony inconsistent with his trial testimony. The deposition will serve to enhance chances of settlement.
Witness preparation begins with reassurance. Tell the witness what you think about the case. Tell the witness that the only thing he can do to hurt you is to be untruthful. Tell the witness that if you have made a mistake and he spots it, the greatest favor he can do for you and for the company is tell you what that mistake is. If his perception differs from yours, remember that he was there when it happened. You weren't. Tell the witness that the plainer and simpler the telling of the truth is, the more believable a witness he will be. Tell the witness that it is easy to remember the truth and difficult to tell untrue stories the same way more than once. Tell the witness that what you are going to help him do is to tell the truth in the plainest and simplest and most direct form, eliminating extraneous noise that everyone has when they speak of events and their participation in them. Tell the witness that not every fact in any case is going to be one hundred percent in support of your side of the case, and that the negatives have to be dealt with in equally straight forward a manner as the positives. A witness who will, without hesitation, own up to a mistake is a believable witness. Having been up front about the bad stuff, what he says about the good stuff will be pure gold credibility. If you have no confidence in your case because of the presence of negative facts, then you probably don't have a case and ought to settle it as soon as possible. Negative facts abound in every business dispute There are always mistakes in every single business project. Perfection is impossible, and pretense about never being wrong is a hallmark of a liar.
Now that you have had the conversations with the witness that have provided him with the requisite comfort level, and trust has been established between you, it is time to 'work' the documents and hear what he has to say -- round one. There are two ways to approach this. One is to simply talk to him about the events that are at the core of the dispute. It should be as much a conversation as you can make it. Save the tough questioning for another round. The other is to have first given him a set of the relevant documents to study to refresh his recollection, and then have the initial conversation about the events. I think most people will appreciate having been given the documents first rather than having been allowed to misspeak and then perhaps be embarrassed when the documented history does not agree. If embarrassment raises its ugly head, it will either be a positive learning experience or you will have to go back and rebuild part of the relationship with him. Keep reminding him that there is no agenda to tell the 'story' in a particular direction. At this point the object is to get him to appreciate what really happened and sort out any incorrect recollections he may have had. In this manner you are consolidating the truth in his mind and eliminating unreliable recollections. It may be that some documentation does not mean what it seems to mean, and this round will help you sort that out also. People do not always say things in an unambiguous manner. Sometimes it is useful for the witness to know what others have said about the events if their statements seem to conflict with his. If there is genuine conflict, it needs to get sorted out. If not, telling him what others had to say may not be productive. It would be helpful in this phase to know whether he and others who were involved have had conversations amongst themselves about the events, and what those conversations were. It is now a distillation process for the witness and for the documentation.
It is important to discuss the completeness of the documents. Are all the files there? Is anything missing? Have documents been removed from any files? If so, what happened to them. File searchers and those involved in the operative events are known to remove and destroy files. In-house lawyers, seeking to impress their only client with their loyalty will do that also. Witnesses will be asked about records retention/destruction when they are deposed. Find out the truth before you are on a public record and under oath.
Once the distillation process is complete, and the witness and you are both confident that the essential truth is clear to both of you, and you are still comfortable with your case, it is time for round two -- noise reduction.
Noise reduction consists of purging the witness' speech patterns of habits of expression that are irrelevant and potentially harmful. It is important to re-emphasize here that you are not coaching him to speak untruthfully, but to speak truthfully in the most effectively communicative manner. Most of us are not conscious of how others hear us when we say things. We think we are doing just fine when misimpressions are sometimes occurring.
One of the worst things that people do is self justify. The answer to 'Did you do that?' is not 'I would never do such a thing.' The answer is a yes or a no. Many who hear self-justification and not direct testimony come away with the impression that the witness has just tried to duck the question for the purpose of concealment. Teach the witness to listen to the question and to answer the question that is being asked and not some other imagined question. The questioner is not asking him to give a speech about his rectitude and integrity. He is asking if something happened; was the witness involved; how was the witness involved; and what was the purpose of doing whatever it was that was done. These will be asked in separate questions and need to be responded to directly. The witness needs to know that he will not be entrapped by this response pattern. If you are calling the witness and are on direct examination, he will be asked these questions in a manner that will give him the opportunity to say what needs to be said. If he is being called by the opposition and roughly examined, you will be there to resurrect his opportunity to say the proper things immediately after the opponents have concluded their questioning. He can feel comfortable that he will not be left hanging from some limb. Long-winded statements of company policy, mission statements (the single most horrid language usage in the universe), and rectitude do as much damage to credibility as false testimony. When you aren't sticking directly to the point and answering questions forthrightly, the perception is that you are being evasive for purposes of concealment and false testimony. If the answers from the witness are direct and forthright, the impression left with judge, jury or arbitrator will be that you are being truthful. This includes direct answers about the good and the bad. You shouldn't be there in the first place if the bad outweighs the good. You should have settled and taken your medicine in private.
There is a tendency to speak ill of the opposition. If the opponents' acts are blameworthy, a straightforward statement of what they have done ought to suffice and leave the desired impression of what miscreants the opposition truly are. Name-calling and undue rancor leave a bad impression. Let their conduct speak to the issue of what they deserve, not your opprobrium and epithets. Hopefully, they will not be so gracious when it is their turn to speak, and they will by contrast show that you are being direct and that they are not. Many lawyers make the mistake of thinking that accusations, often repeated, are a substitute for evidence. It is not and will elicit proper objections and rulings from the bench that confirm your view of the negative value of name calling as a 'filler' for evidentiary voids.
You should teach the witness his proper role and show him how attempts to confuse his role with yours can get him into big trouble. His role is to provide truthful information and to be a gentleperson. Yours is to be the advocate. It is your function to be concerned about where your opponent is going with a line of questioning. If the witness deems that to be his function, he is not concentrating on simply giving accurate answers. If he gets into that mode, he will not be convincing. Constantly coach him to simply answer the question that is being asked and leave the advocacy to you. Role-playing in this and in every other phase of witness preparation is an indispensable tool. There will be occasions, to be sure, when something pops into his mind, prompted by a question in most instances, that he had completely forgotten about until that moment. He will not have discussed this with you, and he will be fearful of it. And this fear will reveal itself in physical mannerisms visible to the judge, jury or arbitrator. If you have vetted this possibility with him before he is called to testify, he will know how to deal with it. In such an instance he should be taught to ask himself in his mind whether this surprise recollection is a fact or an opinion. As he is obligated to speak truthfully, a fact should be stated if it is responsive to a proper question. If it is a matter of his having a doubt about some set of circumstances, that doubt should be kept to himself until you have an opportunity to speak with him about it on the next break. Then you and he sort it out, and if further explanations are called for, you clean that up when you get the witness back (at trial) or decide whether to clean it up now or wait till later (in a deposition).
It is important to teach the witness how opposing counsel may try to use a style of questioning that portrays the witness as insensitive to normally held community values. Questions such as inquiring whether the witness had misgivings when assigned such and such a task are typical of this approach. If you and the witness discuss these techniques, you will learn before it is too late what his answers are, and he will be taught by you that the answer to all such questions is a negative. Anyone can have doubts about the efficacy of an action plan in any business context. That is not relevant to its propriety. It is usually a doubt about the likelihood of achieving the desired goal rather than a doubt about its rectitude. These questions are invasive in the sense that they are an attempt to put the witness in a judgmental posture, and, as such, they must be resisted in the manner just prescribed. The witness is not there to be a judge. The witness' opinions are not to be offered if the witness is a fact witness and not an expert witness. The witness may be told by a judge or arbitrator to answer a question calling for an opinion, despite your objection, and in that situation, his opinions must have been vetted by you as part of your preparation. Often a witness will be allowed to testify about his opinions if they relate directly to what he does and it is something about which he obviously knows a great deal. This is another instance in which the witness' opinions and personal concerns need to be vetted during preparation. If there were conversations amongst those involved in the events that may touch upon some sort of 'smell test', those conversations may be relevant testimony, required to be given in response to questioning. They should be accounted for in preparation .
The witness must know that he is there to testify to what he knows as a matter of fact because he personally witnessed some act. He is not there to testify to what others would have done. They can testify to what they did and what they know. If the witness saw something he should testify about it, if asked. If the witness was not personally present, he should never testify to what someone else would have done or should have done. This is imperative for the simple reason that the opponent asking the question often does not accurately describe what the situation was. The person on the spot can handle such questions because he knows what the circumstances were and can state whether the question improperly describes the ambient circumstances. Predicate statements are often made by opposing counsel as part of his question, and the witness must be trained to spot inaccuracies in such predicate statements. If those inaccuracies are allowed to go unchallenged, they become accepted as true, and the witness may be prevented from giving proper testimony by such tactics. Objection should be made to the use of such tactics. The witness should be trained to listen when you are objecting, as the objection may give him a clue to a trap he has not sensed. Often an opponent's question will begin with 'Isn't it true that...' followed by a statement of assumed fact. That fact statement is frequently wrong or incomplete. It is your job to object if the statement includes facts that have not been admitted into evidence yet, and sometimes to object that opposing counsel is testifying rather than interrogating. It is the witness' job to listen carefully and account for incorrect statements and for incomplete statements. The witness has three response options, including Yes, No and I can't answer that yes or no. Teach the witness to say that he can't answer yes or no if the question includes incomplete facts to account for the entire correct circumstances or if the statement of facts includes something that he doesn't know about because he didn't personally see it. Not knowing whether opposing counsel's question includes an accurate statement is a proper basis for responding that the question cannot be answered yes or no. That may prompt opponent to ask why not, and then the witness can say what the true facts were or what was omitted that may be important. Role-playing is very important here. If the facts were not correct rather than incomplete, the answer to 'Isn't it true that...' is 'NO'.
People have mannerisms. They wring their hands, fidget, and look away when answering, sweat, and do all sorts of other things. If the witness tends to do things that are extreme, they may need to be the subject of training. If the mannerisms are not extreme, I tend to leave them alone. After all, the witness is human, not an automaton. Sometimes the mannerisms may be taken by a jury or arbitrator as an indication of a tendency to evade or to be less than truthful. In your final summation it is useful to address the issue of credibility -- how does one tell whether to believe a witness? When someone wrings his hands or looks down into his lap when speaking, he may be doing that because he is a liar, or he may be doing that because his is simply nervous and apprehensive about being a witness in a public forum or hearing. The person who looks at the ceiling and waits to answer may be concocting perjury or simply concerned that what he is about to say is correct. You can't tell which it is from the fact that he does that. So that may not be a reliable indicator of truthfulness. The person who looks you straight in the eye and speaks to you as though you were social acquaintances may be doing so because he is telling the truth or because he is simply brazen in his mendacity. That is, therefore, also not a reliable indicator of truthfulness. It is the same for practically every personal tic. But there is one very reliable extrinsic corroborator of truthfulness. Do the records and documents that were created at the time the events occurred, when there was not yet any dispute, when there was no motive to impress any judge or jury, agree with the witness' testimony or contradict it? That is the best test of witness reliability. Is he telling you now what he was telling his associates when all this was happening. Do the contemporaneous company memoranda confirm what the witness has said? If he one story then and is telling a contrary story now, one of them is probably false. The more reliable statement of facts is the one made when no judge or jury was looking. That part of your summation takes ten seconds to make and is worth its weight in gold.
No matter what you do, things simply do not always work out as you hope. Litigation is a very inexact process in which emotions and biases and expectations do not always combine in harmonious, symphonic works of artistic grandeur. It is not as bad as trying to predict the weather -- that is pure chaos theory. But there are many dependent variables in litigation, and risk expands exponentially with the number of dependent variables. The dependence upon third party witnesses is one very critical element to case evaluation. You can't have access to third party witnesses the way you have access to your own client's employees. If the third party witnesses are your client's customers, there is serious concern about lost business as an overlay to the concern to optimize the quality of evidence. I have seen a subpoena for records end serious, long-term business relationships because it was ineptly handled. If the third party witnesses are competitors of your client, another layer of risk is added. And the story gets worse as it gets longer.
This tutorial is about preparing witnesses to whom you have essentially congenial access. It focuses upon a small, albeit important aspect of dispute resolution. It does not pretend to account for the overall risks of civil confrontation. That is another tutorial entirely.