The Control Gap

• Author: Daniel Small
• Profession: Is a partner in the Boston and Miami of ces of Holland & Knight LLP
• Pages: 23-24

Dening the Control Gap

The Witness: “It’s their deposition; I just have to sit here and take it.”

The Lawyer: “Why is he letting this questioner walk all over him?”

Understanding the Control Gap

Even to highly accomplished individuals who are well accustomed to being

in command of every situation, the witness chair gives all the appearances

of the questioner being in control: it is his subpoena, his case, his arena, his

life’s work. The questioner walks in with a list—written or in his head—of

questions designed to trip up the witness, along with a variety of battle‑tested

follow‑up techniques if the prepared questions don’t work. It seems obvi‑

ous who’s in control.

However, if the witness—or the witness’s counsel—buys into this decep‑

tion, they put themselves at a terrible disadvantage. What lawyer and client

need to understand is that all that impressive stuff is just that: it’s just stuff,

designed to get the witness’s testimony. This is all about the witness’s tes‑

timony, and so witnesses have the right and the responsibility to control

their own testimony. Witnesses cannot tell the truth as they know it—not

as the questioner would mold it—unless they are in control.

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Chapter 7

The Control Gap

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