When the transcript arrives from what you recall as a strong cross-examination at deposition or trial, you look at the critical section and you wince. You find that you said “okay” after each answer as you began the next question, or that you began each question with the word “and”.
While not fatal to the examination, they don’t look good up and down the page, and they make the transcript quotes in our motions and impeachments less crisp than we would like. They violate our goal of making our questions as short and tight as possible, eliminating unnecessary words.
The old school method for curing verbal tics seeks to modify the offending behavior by associating it with something unpleasant. One advocacy instructor that I observed some years ago clapped his hands loudly each time the your lawyer began a question with “okay” or “and” in her examination of the witness. The sound of the clapping was sufficiently harsh and embarrassing that in time the questioner became very focused on not uttering the words that would bring about the horrible sound.
I prefer a cure that addresses the causes of the problem rather than simply eliminating the symptoms. One paradox in any cross-examination, either in court or at a deposition, is that in trying to establish a rhythm we tend to go faster and faster. We acquire a sense of urgency about asking the next question quickly, in order to preserve the rhythm, but in the process we feel rushed. It is as if the examination is a ping pong game in which we must return the volley with a question as soon as the answer to the prior question arrives. The result is that we ask the question before we are ready, and it is not as tight and good a question as it could have been with just a little more time.
The back and forth between an intelligent witness and a prepared questioner is not ping pong; it’s more like chess. The questioner should listen to each answer carefully, calmly formulate the next question, review it trying to tighten and shorten it, eliminating defects of form ambiguities and excess words, and then calmly ask it to the witness. While that seems like a long process, it can be accomplished if you just give yourself a nanosecond before asking the next question. Slow down. Take a pause.
No one will notice that you are taking an extra nanosecond, but the brain can do all sorts of good things in that brief moment. Your next question will be stronger, tighter, and more strategic. Your transcript will offer no clue of the fact that you took the extra nanosecond between questions – other than the fact that your questions will be better, it will look exactly the same.
Except for the verbal tics, which will likely have vanished. We add the “okay” and the “and” as filler, because we perceive that while it is our turn to speak but we don’t quite have the questions. Taking the extra nanosecond will make them drop away. Without all the applause.
About the Author: Mark Risk practices employment law and litigation at Mark Risk, P.C. in New York City, including litigation of discrimination, restrictive covenant, contract, wage/hour, and employee benefits cases. He is co-editor of Labor and Employment Law, the quarterly newsletter of the ABA Section of Labor and Employment Law, and is a frequent speaker about employment law issues. He has been teaching in NITA programs since 1996.