Conclusion

• Author: Daniel Small
• Profession: Is a partner in the Boston and Miami of ces of Holland & Knight LLP
• Pages: 213-215

The process we’ve just described has three basic goals: (1) to level the play-

ing eld; (2)to allow the witness to take control; and, (3)to tell our story.

The witness environment is an extraordinarily deceptive one, in that it has

all the appearances of the questioner being in control. It is the questioner’s

subpoena, court or conference room, and questions. You must explain

to witnesses that if they accept that notion, they lose. Because despite all

appearances of the questioner being in control, the whole point of the

exercise is to get the witnesses’ testimony. Because of this, the witness has

a right to take control, not in an adversarial way, but in a very simple way,

by following the basic rules laid out in this book.

Some years ago, a colleague of mine asked for my help in a divorce case.

His client, the wife, had testied in a deposition for one day but had not

nished and was now scheduled for a second day. However, my colleague

was on trial in another case, had already had to postpone this second day of

deposition several times, and was afraid that the court would not give him

another extension (opposing counsel had already refused). Would I step in

on short notice and represent her at the continued deposition?

When I read the transcript of the prior deposition, I was disheartened.

Here was an obviously intelligent, honest, caring person who had never-

theless been a disaster as a witness. The marriage and divorce were both

ugly. The husband had been mentally abusive and domineering during the

marriage. She had responded by always trying to “x” things, by being ever

nicer and ever more helpful, until her husband nally left her. Both of their

characteristics carried over into the divorce and depositions. The husband

213

Chapter 36

Conclusion

Small_PrepWitness_20140403_13-27 Second Pass.indd 2138/12/14 10:20 AM