Witness Preparation and the Golf Swing

High overhead angle view of golfer hitting golf ball on fairway

By now you have probably heard about ex-Baylor University President Ken Starr’s disastrous interview with Waco TV station KTWX.  I joked about it on LinkedIn and Twitter, but I have to admit I had a mixed reaction when I saw it.  Part of me said, “wow, I can’t believe Starr and his consultant performed so poorly and made themselves look so bad!”  But another part of me—the trial lawyer who has had to prepare witnesses to answer difficult questions in depositions and in the courtroom—felt something bordering on sympathy, a sense of “there but for the grace of God go I.”  This got me thinking that trial lawyers—and the witnesses they prepare—can learn a lot from the Starr interview debacle.

The question concerned an email a former Baylor student sent Starr with the subject line “I was Raped at Baylor.”  Reporter Julie Hays asks, “what about the victim that came forward saying that she had personally sent you an email – and Art Briles an email – saying in the subject line that she was raped at Baylor, did you ever see that email?”

After Starr gives his first answer, his crisis management consultant Merrie Spaeth interrupts the interview and says she needs to speak to Starr.  After Starr returns and answers the question a second time, he turns to Spaeth (who is off camera) and says “is that ok?”  Spaeth responds, “don’t look at me, look at her.”  Starr later answers the question a third time.

It’s worth recapping exactly how Starr answered:

  • “I honestly may have. I’m not denying that I saw it.”
  • “All I’m going to say is I honestly have no recollection of that.”
  • “I honestly have no recollection of seeing such an email, and I believe that I would remember seeing such an email. The president of a university gets lots of emails.  I don’t even see a lot of the emails that come into the office of the president.”

These are really three different ways of saying “I don’t remember.”  Here are the three answers rephrased:

No. 1: “I don’t remember seeing that email. But I may have seen it, and I’m not denying that I saw it.”

No. 2: “I don’t remember seeing that email” [period].

No. 3: “I don’t remember seeing that email. But I believe I never saw that email, because there were a lot of emails to the president’s office I did not see, and I would remember seeing an email like that.”

The real difference in these answers is the conclusion drawn from the fact that Starr does not remember the email.  Answer no. 1 draws the conclusion that it’s possible he saw it.  Answer no. 2 draws no conclusion.  Answer no. 3 draws the conclusion that Starr never saw the email.

Starr later issued a statement saying “the answers are entirely consistent, and they are truthful.”  In a narrow sense, Starr is right.  If in fact Starr does not remember seeing the email, then his statements were accurate.

But the damage has been done.  Starr went wrong in the interview in two different ways.  First, he should not have given three different answers.  The fact that the three answers can be reconciled with each other doesn’t help him much in the court of public opinion.

This reminds me of another public figure, one well known to Starr, who was ridiculed for testifying “it depends on what the definition of ‘is’ is.”  The funny thing about that answer is that it was actually accurate.  The statement he was asked about—“there is absolutely no sex of any kind”—was ambiguous.  It could have meant two different things: (1) there is no current sexual relationship or (2) there has never been a sexual relationship.  So from a very technical perspective, the answer was correct.  But that didn’t matter, because the answer sounded ridiculous and evasive.  A better answer would have been “I understood that statement to mean there is no current sexual relationship, and that was absolutely true.”  When a question is ambiguous, it is usually better to define it on your own terms than to quibble with it.

But I digress.  The second way that Starr went wrong was looking at his handler and asking “is that ok?”  As bad as it is to give three different answers, this is the more damaging part of the interview, especially when it happens right after Starr took a break to talk to Spaeth.  It makes Starr look like he is just answering the question the way Spaeth told him to—even if his answers are truthful.  This of course undermines his credibility, leading the audience to question whether any of his statements can be trusted.

So what does this teach lawyers who must prepare witnesses to face difficult questions in depositions or in the courtroom?  Here are four and a half key lessons for witness preparation from the Starr interview:

Lesson 1 is obvious: be prepared.  It is painfully apparent that Starr was not adequately prepared for a key question that should have been anticipated.  I’m not casting blame; perhaps there was simply not enough time.  But if you have the time, use it.  And don’t just lecture the witness for two hours.  Practice asking the hard questions and having the witness answer.

Lesson 2 may be less obvious: keep it simple.  I’m surprised at the complexity of the witness preparation advice you can find, especially from professional consultants with PhDs and other impressive credentials.  After reading a professional’s long list of pointers, I sometimes find myself wondering “has this person ever had to prepare a real flesh and blood person to testify?”

The problem is that most witnesses, even sophisticated and educated ones, simply do not have the necessary skill and control of their emotions to keep all this nuanced advice straight in their heads, especially in a high pressure situation like a deposition or trial.  Too often, the result is that the witness gets confused because he is trying too hard to follow a complicated list of pointers, some of which may seem contradictory.  Golfers will understand this.  It’s like telling someone on the golf course “here are 15 things you need to keep in mind while you’re swinging the golf club.”

It is better to keep it simple.  Realistically, a golfer can only think about one or two things while he’s swinging the club, like “keep your head down.”  It’s the same with testifying: you want the witness to focus on two or three simple things.  What those things are will vary based on the witness and the situation, but they can be procedural, such as “listen carefully to the question before you answer,” or substantive, such as “whatever you do, don’t let her get you to admit you read that email” (unless of course, the witness did read that email).  And if you practice with the witness, some of your tips may become automatic, like muscle memory in the golf swing.

Lesson 2.5 is related to keeping it simple: I don’t know” or “I don’t remember” should usually end with a period.  I recognize this one is hard to follow.  There is perhaps no greater urge in human nature than to follow the statement “I don’t know” with an explanation or some speculation about what the answer might be.  But the witness has to learn to fight this urge.  If the answer to the question “did you ever see this email?” is “I don’t remember,” then teach the witness to say “I don’t remember” period.  Admittedly, that approach may not work so well in public relations, but it is usually the safer approach in litigation.

But what if the witness merely saying “I don’t remember” is not going to be persuasive to a jury?  This leads to Lesson 3: If you’re going to take an aggressive position on a difficult issue, commit to it and stick to it.  For example, if whether the witness saw a particular email is a crucial trial issue, and if you decide to take the position that he never saw the email, then prepare the witness to say this: “I don’t believe I ever saw that email, because there were a lot emails to my office I didn’t see, and I would have remembered seeing an email like that.”  Teach the witness to repeat this answer when the question is asked again (and it will be). It is similar to Starr’s Answer No. 3 above, but it is more assertive.  If the witness really does not remember seeing the email, then the answer is truthful, and it sounds more confident because it states the conclusion first.

Finally, Lesson 4 is this: make sure your witness knows never to turn to you and say “was that ok?”


Zach Wolfe (zach@zachwolfelaw.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at Zach Wolfe Law Firm (zachwolfelaw.com). Thomson Reuters named him a Texas Super Lawyer® for Business Litigation in 2020, 2021, and 2022. His golf game has really suffered since he started blogging.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

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