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As the question hangs in the air, you can see the tension working on the witness. Her face screws up, she looks at the ceiling, tenses her shoulders, and delays. As you call for a time-out in the preparation session, the witness blurts out, “What should I say? I don’t know the answer!” Well, the attorney and consultant patiently explain, if you don’t know, then perhaps that should be your answer. As long as the witness has done her homework in knowing what she should know, and as long as she isn’t using it as an evasive tactic, then “I don’t know” is going to be the only correct answer to that question. For attorneys and those who work with them, that advice is pretty obvious. Only it isn’t always so clear on the witness’s side of the table. Saying “I don’t know” can feel like failing a test, looking stupid, or falling into opposing counsel’s trap.
A key message for witnesses to take from the preparation process, however, is that there is great power in “I don’t know.” When it is used thoughtfully and accurately, it is one of many ways to keep the other side from gaining what they have not earned. When the witness doesn’t know, and when the witness shouldn’t be expected to know either, then being comfortable and confident in one’s “I don’t know” will make for a harder examination and fewer mistakes. As simple as that advice is, the subject might benefit from more than the top-level explanation. After all, the fact that it is such a common temptation suggests that there are powerful forces pulling witnesses away from the safety of their own knowledge. In this post, I will take a quick look at why witnesses sometimes avoid the “I don’t know,” some of the ways they try to avoid it, and a few alternative ways to say it that might be more comfortable.
What Makes Witnesses Uncomfortable With “I Don’t Know”?
For attorneys, consultants, and witnesses themselves, it helps to be aware of the forces that can push witnesses away from an honest “I don’t know.” In my mind, those forces boil down to some understandable desires.
- We Want to Be Helpful
It may not be a conscious wish to help the other side (and if it is, then you have problems that stem beyond witness preparation), but there is a natural human tendency for us to try to be helpful in communication. If someone is asking, it must be because they think we know.
- We Generally Want to Look Smart
We learned in school that passing the test means knowing the answer. In the new kind of “test” of a deposition or trial testimony, not knowing the answer feels like failure. A knowledgeable witness, we think, would be able to answer.
- We Specifically Feel, “I Should Know This”
In some cases, there may be a basis for that feeling. If we should know, but don’t, then it is a sign that either the attorney didn’t let us know what to expect, or we didn’t do our homework in getting ready for the testimony.
- We Fear Closing the Door on Future Knowledge
What if we don’t know the answer now, but we might remember it later. That might encourage hedging just as a way of keeping our foot in the door. Phrases like “Not that I recall right now,” can help to keep that door open for the possibility of a more complete answer down the road.
How Will Witnesses Act Like They Know When they Actually Don’t?
Some of these are habits and human tendencies that occur without a lot of conscious thought. But one important goal of witness preparation is to teach and practice the witness out of those habits.
- We Will Speculate
When you don’t know the answer, but you still want to answer, then you guess. Witnesses need to not just be told (more than once) not to speculate, but they also need to understand the difference between estimating and guessing, as well as how to put some parameters and qualifiers around any answer based on uncertain knowledge.
- We Will Be Tempted Into Hearsay or Privileged Communications
Maybe we don’t know, but we talked to someone who does know. That someone might be another party, or it might be our own legal team. In either case, that probably isn’t the answer. The witness needs to understand that the proper sphere of questioning is what the witness knows and not what he heard from others. Applying that distinction can be tricky, though, and benefits from practice.
- We Will Share What They Know on the Topic, Not the Question
Here’s another one that can find its way out as an unconscious response. We don’t know the answer to the question itself, but we do know something on the subject that the lawyer is asking about. Here the witness needs to focus on the question and not the broader topic. If you don’t know the answer, it doesn’t matter what else you know. The answer to the question is, “I don’t know.”
So How Should Witnesses Say “I Don’t Know”?
It shouldn’t be hard. Once the witness is talked out of reasons and temptations listed above, the simple and easy “I don’t know” waits on the other side. But it can still help to keep in mind a few different ways to say it.
- Say What You Do Know
If you know part of the answer, but not the whole answer, then it can be okay to share what you know. If the lawyer asks a doctor how many procedures she does in a year, it works to say, “I don’t know, but it is probably between fifty and seventy-five.”
- Say What You Would Have to Review in Order to Know
If you would have to review a document in order to give a definite answer, then say so: “To say whether the patient’s vitals were normal or not, I would need to look at the chart.” Sure you have some responsibility to review that beforehand, but that doesn’t mean memorizing it. When you’re on the record, you want to be sure, so ask for the documents.
- Say Who Would Know (If You’re Sure)
If the nurses would know, but the doctor wouldn’t, then say so: “You would need to ask that question of the nurses who were doing the hourly monitoring.” Before you say who knows, however, be sure that you are correct and not putting that party in a difficult spot.
- Or Just Say “I Don’t Know”
Of course, sometimes the simplest is the best. There is no need to justify or defend your lack of knowledge on something. Once you have prepared, your only responsibility is to testify about what you know. So don’t use it as a crutch or an excuse, but if you don’t know, you don’t know.
In examination, the questioning attorney sometimes plays on the human tendency to be creative, to fill in, and to add more. And that can be a strong tendency. Look at me, after all. I just wrote an entire post on saying “I don’t know.”
© Copyright 2016 Dr. Ken Broda-Bahm, Persuasive Litigator. All rights reserved.