Dan Small, left, and Michael Hantman of Holland & Knight.

When we prepare witnesses for direct and cross examination, we often say that testifying is just like playing the game of baseball. Once the uproarious laughter stops, we explain as follows …

Direct examination (when you're being questioned by your lawyer) is like being at bat. Your goal is to get on base and help your team score runs. You don't need to score all the runs by yourself. You don't need to swing for the fences with every pitch. Don't swing at a bad pitch. Striking out hurts the team. Yelling at the umpire and getting kicked out of the game is a terrible idea.

Cross examination (when the opposing lawyer questions you) is like being in the field. You can't score runs when you're in the field. The best you can do is stop the other team from scoring. Do your job, stick to the fundamentals and recognize that defense is half the game. Be disciplined and pay very close attention. And if you want to score runs? Wait until you're at bat, and you'll get plenty of chances.

The similarities between baseball and witness testimony are striking. And they don't end there.

Direct Examination

This is your opportunity to tell your story (i.e., to score runs). Make sure you and your lawyer practice painstakingly in advance. While your lawyer's job is to ask questions and your job is to answer them, it is helpful to get a feel for how your lawyer tends to phrase things and where his or her questions will generally go. Having a loose script and plan of action is wise. Since leading questions (where the question implies or contains the right answer) are not allowed, you need to be able to tell your story. To do this well, detailed practice sessions will help your cause.

That said, take each question one at a time. Don't answer what you expect will be question number eight to question number one. If your lawyer asks whether you sent a particular email, the only possible answers are generally “yes,” “no” and “I don't remember.” There's no scenario where the appropriate answer is: “well yes, I thought it was important that Martha understood how I felt about this issue and it's clear from this email that I opposed the course she planned to take because she was violating general accounting principles and I wouldn't allow our company to mislead shareholders and the SEC.”

While all these things might be true, you're trying way too hard. You're swinging for the fences. Be patient and answer the question asked … and only the question asked! With good preparation, your lawyer will ask the right questions to elicit the answers you want to give.

And don't get ahead of yourself. Try and hit singles by answering each question simply, honestly and completely and then stop talking. Testifying isn't a conversation. It's an unnatural process where your job is to listen to the question, answer only the question that was asked and then be quiet. “Question, pause, answer, stop” is unnatural, but crucial rhythm to being a good witness. Trying to do more is a recipe for striking out.

Cross Examination

Here is your chance to play some defense and make sure the other team doesn't score runs. There are some key rules to follow to help your defensive efforts.

Practice isn't confined to direct examination. Your lawyer knows the strengths and weaknesses of your case. He or she knows generally where and how the other side will attack you. Insist on your attorney ruthlessly cross examining you. This is not the time to go easy. If opposing counsel at the deposition or trial is much tougher on you than your attorney was in practice sessions, no one is well served. As baseball legend Pete Rose said, “practice the game the way you're going to play the game.”

Don't waste your time and energy belittling or attacking the other side. Opposing counsel has a job to do, just like you do. If you are thinking, saying or implying negative things about the job he or she is doing, you will accomplish nothing, distract yourself from your difficult job and be needlessly antagonistic. If there is a reason for things to get difficult, leave that to your lawyer (or your team manager). In other words, stay above the fray.

Know your objective and don't deviate from it. Answer questions in a clear, concise and defensible manner. If you ignore the fundamentals you've worked on and practiced, an error is sure to follow. And don't forget that one error can lead to multiple, repeated mistakes. Even superstars make errors. If you make an error—small or large—just stop and fix it. Don't try to work around it. Stop, “clarify” your answer, move on and get ready for the next play.

Always remember you're making a record. The most important person in the room is the only one who doesn't say anything: the court reporter or person taking notes. Assume that everything—questions, answers, comments, everything—will be transcribed. Answer each question as if you were dictating the first and only draft of an important document (you are!). This may help force you to discipline yourself to make a thoughtful, careful reply. There are no “do overs.”

And don't forget to set goals for what you want to accomplish. Put another way, follow the advice of baseball great and noted wordsmith Yogi Berra: “you've got to be very careful if you don't know where you are going, because you might not get there.”

Dan Small is a partner in the Miami and Boston offices of Holland & Knight. The former federal prosecutor is the author of “Preparing Witnesses” (ABA, 4th edition, 2014), and teaches continuing legal education programs around the country. He may be reached at [email protected]. 

Michael E. Hantman is a Miami partner with the firm. The former Florida Assistant Attorney General focuses on white collar criminal defense, internal corporate investigations, compliance counseling and complex business litigation. Both are members of the firm's white collar defense and investigations team. Hantman may be reached at [email protected].