The Party Witness

• Author: Daniel Small
• Profession: Is a partner in the Boston and Miami of ces of Holland & Knight LLP
• Pages: 169-172

The Ten Rules apply most directly to the classic neutral witness—someone

who is not a directly interested party and who has no real stake in the mat-

ter. In that situation, the ultimate goal is simply to go home, with as little

risk or complication as possible. In order to achieve this, the witness must

listen carefully, answer truthfully, closely dene his or her little piece of the

larger jigsaw puzzle, and let others worry about the big picture. Question,

pause, answer, stop. Doing this well requires preparation and discipline, but

that is what the Ten Rules are for.

What happens when the witness is an interested party—or is someone who,

depending on the quality of the encounter, could turn into one? This can take

many forms: the complainant or target in an investigation or inquiry, the plain-

tiff or defendant or director or ofcer of a party entity in civil or criminal

litigation, or a party in any other form of proceeding. In this situation, the wit-

ness does have an interest in seeing, and in shaping, the bigger picture. There is

more at stake, and persuasion becomes a far more important part of the mission.

Perhaps surprisingly, the changes created by being a party should not be

that dramatic. Remember, the point of these Ten Rules is to help your client

tell the truth in this unnatural and precise environment. They take away a

lot of spontaneity, but what they ultimately give back is credibility. They

help you teach your client to give testimony that is nothing but the truth.

The process may be frustrating and difcult, but the result works. Witnesses

who have a clear interest in the matter often lose credibility because they

try too hard to persuade, to make the facts more favorable, and to make

themselves look good.

169

Chapter 29

The Party Witness

Small_PrepWitness_20140403_13-27 Second Pass.indd 169 8/12/14 10:20 AM