When you intend to call successful, confident, business people as witnesses, it is easy to get lulled into a false sense of security and overlook the litigation risks. But, as this recent Washington Post article[i] vividly illustrates, it is not only inexperienced, nervous, witnesses who can fare badly under cross examination.
Trump v O’Brien
In 2006, US President Donald Trump (as he then wasn’t) unsuccessfully sued a Bloomberg executive editor, Timothy L O’Brien, over a book O’Brien had written called TrumpNation. As O’Brien explains it, the outcome was all-but assured after Trump’s abysmal witness performance:
[My] lawyers deposed him under oath for two days in 2007. We had the opportunity to ask Trump about his business and banking practices, his taxes, his personal finances and his professional relationships.
… It didn’t go well for the future president.
Hammered by [my lawyer] and her deputies, Trump ultimately had to admit 30 times that he had lied over the years about all sorts of stuff: how much of a big Manhattan real estate project he owned, the price of one of his golf club memberships, the size of the Trump Organization, his wealth, his speaking fees, how many condos he had sold, his debts and whether he borrowed money from his family to avoid going bankrupt personally.
He also lied during the deposition about his business dealings with career criminals.
Five Litigation Traps for Highly Successful People
Now, President Trump may occupy a witness category all of his own. But the reasons why this cross examination assault was so damaging are themselves not unique. In fact, they are traps that many over-confident witnesses fall into. For instance:
1. Lack of preparation:
Despite his lawyers’ best endeavours, it was apparent that Trump had simply not read key material.
Senior executives are busy people. They juggle multiple priorities and carry a lot of responsibility. Trying to schedule time for the case is a challenge and they will often be underprepared. This risk is amplified if a person is also a bit blasé about giving evidence and/or underestimates the nature and intensity of the witness role.
Trump was said to have a “tendency to dissemble and improvise”.
It is very common for CEOs and senior executives to be “specialist generalists”. They are often in the habit of converting complex messages into 30-second sound bytes, without the need to be on top of every minute detail. Sometimes they even “wing” it. This style, while usually a strength at work, can quickly become a weakness in the witness box.
3. Inattention to detail:
Trump was said to have an “inability to stick to the facts”.
This may have been a case of not wanting to let the facts get in the way of a good story. However,an insufficient grasp of the facts is also a sign that the witness has not delved deeply enough into critical details. This may again be a consequence of working habits, where the person is constantly spanning a multitude of issues rather than focusing on just a few.
4. Undisclosed ammunition:
Having been a public figure for many years (and with an almost compulsive tendency to self-aggrandise), Trump’s opposition was able to draw on a wealth of publicly accessible information to contradict key parts of his testimony.
The more high profile the witness, the greater the chance that there will be something they’ve previously said or done publicly that could be used as cross examination fodder. Lawyers are also at risk of being blindsided if the public material is not part of general discovery and is produced late in the piece.
5. Failure to defer to other witnesses:
Trump was hoist by his own “I’m the man in charge” petard. He gave the impression that his staff were “minions” who followed his orders and did not act independently. In doing so, he unhelpfully assumed responsibility for matters that he should or could have distanced himself from.
CEOs and senior executives often speak in public on behalf of their organisations. They are used to shielding others from scrutiny by appearing to have more knowledge about issues than they really have (or, indeed, would reasonably be expected to have). If they are induced to assume the same role under cross examination, they are vulnerable to floundering outside their brief. They also risk undermining the testimony of other witnesses.
Witness Familiarisation Mitigates Risk
President Trump aside, an overly confident witness is not necessarily a lost cause. Even seemingly-confident witnesses benefit from witness familiarisation. No matter how much they have riding on the outcome, most people giving evidence want to do their best. They appreciate being able to foreshadow how their witness performance could be imperiled, and are receptive to constructive feedback that helps them dodge obvious pitfalls.
[i] The article was republished by permission on the NZ Stuff site and the link is to this reprint.