Rethinking Woodshedding

• Author: Edna Selan Epstein
• Pages: 22-23

Rethinking Woodshedding

Trust clients and let them speak freely, but carefully, when testifying

By Edna Selan Epstein

We all know, and most of us use, the woodshedd ing drill

when preparing a witne ss to testify:

“Don’t volunteer.”

“Don’t guess.”

“If you know the answer, give it. If you don’t, say so.”

“If you can answer the ques tion with a yes or no, do so.”

“Don’t elaborate.”

“I’ll fi x any problems that might arise from your tes timony

on a redirect exa mination.”

Who among you has not used this t ime-honored standard

technique in prepar ing a witness to give testimony dur ing

a deposition or at trial? Who among you even remember s

when and by whom you were taught what can be st be

described as t he standard woodshedding dri ll? In the

standard dr ill, the unvoiced assumption is that but for

the “magician law yer’s” inestimable assistance , who knows

what errors the “idiot client” w ould be capable of, thereby

dooming the case?

There is another possible approach t o wit-

ness woodshedding. It is based on t he premise

that the client can be tr usted not to be an

idiot, and that it is bes t to present the client’s

a r mative case even during the course

of a client’s deposition—and even during

questioning by the opposing law yer. So says

Kenneth R. Berm an in Reinventing Witness

Preparation: Unlock ing the Secrets to

Testimonial Success , an ABA publication.

Berman arg ues that, most of the time, the

tacit assumptions on wh ich the standard

woodshedding dri ll are predicated do not

serve to advanc e the client’s case. Instead, al l too often, they

act to the client’s detri ment and are not readily reparable on

questioning by the client’s lawyer. Berma n’s position is based

on the premise that many in advertent steps into trouble

can thusly be avoided. He gives t he example of Bill Cosby’s

a r mative answer in a deposition as to whether he boug ht

drugs to share w ith the victims of his a lleged sexual assaults.

Whether to stick to the s tandard woodshedding dri ll or

adopt a more expansive approac h is a strategic question.

Is there a tactic al approach you can use regardles s of

your strategic choice a s to how narrowly or expansively

you believe your witnesse s should answer questions the

opposition asks them?

4 THE WIN

There are four simple rules you ca n give to any witness

about how best to answer ques tions from opposing counsel.

I derived these by watch ing how superlatively a CEO of a

Fortune 500 company answer ed questions I put to him dur-

ing his deposition. Thereaf ter, I threw away the multipage

do’s and don’ts that so many large fi rms use automatically.

I concluded that witnesse s found all those multiple admo-

nitions too numerous to remember. If any thing, their very

multiplicity and complexit y made witnesses more anxious,

often leading t o stupider answers.

So here are my four simple rules:

• Listen to the quest ion.

• Consider your answer before you spe ak.

• Give your answer—succinc tly or broadly—depending

on the strategic deci sion we made, as explained

to you by your lawyer.

• Stop or continue depending on the underlyi ng

strategic decision ab out how expansive we have

decided your answers should be.

Aw, shucks, you doubtlessly are thinking: Tha t’s

way too easy and t oo simple. Believe it or not, it is

hardly as ea sy to follow those four simple rules as

they appear on paper. And you—and far more sig-

nifi cant ly the witness—will discover the d i culties

in any “rehearsal” of t he witness’s testimony. Yet I

assure you that thes e four rules are so much easier

for the witness to remember, and there fore follow,

than the 30-plus pages of d irections that law fi rm s give

witnesses to re ad before preparation begins and ex pect

them to follow.

How did the Fortune 500 CEO teac h me this simple yet

all-encompassing approa ch? For starters, he actuall y waited

about 15 full seconds b efore answering my very fi r st question:

“Please state for the record y our full name.” And thereaft er,

as my questions beca me more complex, he never deviated

from the measured approa ch encompassed by the four

22 || ABA JOURNAL JUNE 2018

Advocacy

EDITED BY KEVIN DAVIS,

LIANE JACKSON

Practice

PHOTOGRAPH COURTESY OF SHOP.AMERICANBAR.ORG