At a recent meeting with a witness to prepare for deposition testimony, and after I told the witness (more than once) to keep their answers short and not to stray beyond the question when answering, the witness asked, “Could you give me some kind of signal when I’m doing that? Maybe scratch your nose?” Attorneys will sometimes suggest the same thing, and for some, taking off their glasses, pulling on an ear, pushing back a chair, putting a hand flat on the table, or clearing their throat might be that intended signal to “stop doing that.” Failing that, there is always the more direct approach, easier in non-Zoom times, of kicking the witness under the table.
What these witnesses and attorneys are looking for is a form of secret communication, like the catcher’s signal to the pitcher in a baseball game advising what pitch to throw. My response to the witness at the meeting was, and my view in general is, that these signals ought to be avoided. For reasons that are both ethical and practical, it is better to have a witness who is oriented and practiced enough to understand the do’s and don’ts on their own, rather than a witness who is looking for external signs during testimony. Prepared witnesses need to understand that and need to understand why. In this post, I’ll share three good reasons to avoid the ‘catcher’s signal’ during testimony.
Because It Is Improper
Any kind of intentional or unintentional signal to a witness during testimony can be seen as a way of providing assistance or “coaching.” And, yes, it can be used as a basis for objection. In one case in Texas, the ABA Journal reports that tapping the witness’s foot during testimony was used as an argument for disqualification of counsel. A more honest method [while it could also lead to objections from opposing counsel, depending on local rules] is to simply interject when defending a witness: “You have already answered the question, stop.”
Because It Is Obvious
Once while monitoring a long and complex trial in Florida, we received a note from a juror with a question she proposed to ask the other side’s witness who was on the stand. As shared in a previous post, the note read, “Isn’t [your attorney] signaling you on how to answer by nodding his head to indicate ‘yes,’ or ‘no’? He is! I see him!” Of course, we all want to avoid the cringe experienced by opposing counsel when that question was read out in court. As is often the case, jurors and opposing counsel notice a lot, and those who are relying on secret signals aren’t being nearly as sneaky as they think.
Most of All, Because It Cuts Against Self-Discipline
Even if it were permissible and concealable, the biggest and the best reason to avoid witness signals is that the entire approach crowds out the much better approach of teaching the witness to develop some self-awareness and self-control. Once the testimony starts, they should not need to rely on any feedback from their lawyer to know when they’ve talked past the answer to a question or engaged in any other communication that could jeopardize their testimony. Instead of watching for the catcher’s signal, they need to learn to pay keen attention to their own speech and rely on their own judgment and discretion. They are, after all, the witness.
This isn’t something that most witnesses can simply be told, however. Instead of ‘learning by lecture,’ most witnesses learn from experience. So, they should gain that experience during the practice session, not during the testimony itself. Ask them the questions you expect them to hear, teach them the principles of giving clear and focused answers, give feedback, and over time, most will gain a good measure of self-control. A well-prepared witness shouldn’t need any nose scratches or kicks under the table.
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Image credit: 123rf.com, used under license
