Outside Counsel

I spent a part of Friday helping to prepare a witness for a deposition. There are as many ways to do this as there are lawyers, I suppose, but we like to take a two lawyer approach. The first lawyer sits down with the client, and reviews the facts that the witness is expected to testify to, after explaining a few base concepts. "Always tell the truth," is the first thing we tell them, and the last. "Listen to the question, and answer the question you are asked," is another. "Testify to what you know; don't guess." There are other rules, we go over all of it. When the witness seems comfortable with the concepts, the second lawyer comes in to apply a high gloss to the witness. This is done by role playing the attorney for the adverse party, and asking questions in the way we expect the lawyer for the other side will proceed. Sometimes this is pretty vanilla, sometimes it means taking a belligerent tone, and sometimes it means that we employ what I believe the lay community refers to as "lawyer's tricks". You'd be surprised how seldom the few threadbare tricks that are out there get used: most of them were hackneyed when "Perry Mason" was must see t.v.. Every now and then, however, someone will roll one out, and since our witness Friday is a high school student, and our opponent this week is an asshole, I figured it might be a good idea to show her how three card Monte gets played. It was a good thing I did-- she fell for every one of them, at least to the extent of becoming confused, and starting to say things that she didn't mean. "I'm scaring you, aren't I?" I said. She nodded, too scared to even say "Yes". "Look," I said, here is how it goes. Can I make you lie?" She shook her head. "Can I make you say something that isn't true?" Again, she shook her head. "I can't make you say whatever I want as long as you are determined to tell the truth, can I?" This time she spoke: "No." "Right," I said, "So stop thinking that I can, and just tell the truth."

The next time through, she got it, but it's funny how often that comes up. Clients think that because we are the lawyers we are going to tell them what to say; and they think that we have some sort of hypnotic power that clouds minds and distorts facts. It would be interesting if that was how it worked, but it would be a very different legal system than the one we have.