Col. Jessep: You want answers?
Kaffee: I think I’m entitled.
Col. Jessep: You want answers?
Kaffee: I want the truth!
Col. Jessep: You can’t handle the truth!
–A Few Good Men (1992)
To be clear, Daniel Small’s Preparing Witnesses honors the fundamental principle that a witness always tell the truth. Still, he would have ruined the movie had Col. Jessep taken his advice.
Small’s premise is that “the truth” is sacrificed by inattention and ineffective preparation, including in divorce and family law cases. In everyday conversations, people are not accompanied by a court reporter or questioned by a highly skilled inquisitor or mediator. Instead, people speak casually, with a mixture of factual reporting, storytelling, and exaggeration. When people become witnesses and leave their ordinary world of conversation, they enter a strange new world with an unnatural communication environment, including in divorce and family law cases. They face heightened risk, unusual pacing, and narrow precision. Simply put by Small, “this is not a conversation.”
Small demonstrates that witnesses (including witnesses in a divorce or family law cases) can take back control of testimony only by following a strict discipline of listening to the question, pausing to think, answering the question and stopping. Every question. Every time.
Through 26 chapters, Small shows us how to serve as mentor and ally to our divorce and family law clients who must journey into the special world of litigation. The first seven chapters set the stage. They orient the divorce and family lawyer and the witness to the strange world of giving testimony, the importance of preparation, seven steps for effective preparation, and the basic principles of being a witness — all of which affect the outcome of divorce and family law cases.
At this point, Small, a best-selling ABA author and partner with Holland & Knight, LLP, presents and carefully explains his 10 Rules for effective and helpful communication by a witness:
- Take your time.
- Always remember you are making a record.
- Tell the truth.
- Be relentlessly polite.
- Don’t answer a question you don’t understand.
- If you don’t remember, say so.
- Don’t guess.
- Do not volunteer.
- Be careful with documents and prior statements.
- Use your counsel.
While I found myself challenging certain statements and strategies presented in the 26 chapters, I have to confess I learned something from Small’s book that I can apply to my divorce and family law practice. I’ve been preparing divorce and family law witnesses for 25 years. I’ve taught trial advocacy, especially as it pertains to divorce and family law. I’ve prepared CLE materials and presented on topics that included witness preparation. And I found that Small had considered the topic more thoroughly and explained concepts in more detail than I imagined possible.
You will learn something from this book to apply to your divorce and family law practice. You will enhance your general knowledge and better appreciate what the witness faces in the special world of litigation. You will find a structure for your witness preparation efforts that will help you better represent your divorce and family law clients. You will find language you can use to help the witness. And you will be able to consult a handy reference when that particular client faces an issue or communication habit that requires correction and control, which could affect the entire outcome of your divorce and family law case.
The core of Small’s book focuses on preparing witnesses for depositions. He includes separate chapters toward the end for interviews, trial testimony, parties, experts, physicians, and criminal defendants — all of which pertain to divorce and family attorneys.
The latest edition includes three new chapters explaining why giving testimony is so different from our conversations in everyday life, how to approach testimony as a means for reaching the finder of fact, and what the witness’s “bill of rights” are for divorce and family law proceedings and litigation. Another 10 chapters were significantly revised and reformatted from the second edition. Small’s book includes a CD-ROM of the appendix materials, which is a handy reference for your divorce and family law practice.
You want answers? You want the truth? You are entitled, and you can handle it. Small’s Preparing Witnesses gives you the answers for how to prepare your clients in your divorce and family law cases and honors your role as a divorce and family law attorney in getting to the truth and bringing it out effectively.
Daniel I. Small, PREPARING WITNESSES: A Practical Guide for Lawyers and Their Clients (3rd ed., 2009, American Bar Association). $89.95.