“I know you think you understand what you thought I said, but I’m not sure you realize that what you heard is not what I meant.” – Robert McCloskey
There is a standard phrase said by most lawyers before an examination begins. It goes something like this: “If you do not understand any question I ask, please let me know and I will rephrase it.” The problem is, as Mr. McCloskey said, meaning can be misunderstood. This is as common in the examination room as it is in everyday life. We are so intent on waiting to reply that we do not actually listen; we hear the words, but we do not absorb them. Witnesses and their counsel are equally guilty of this, though for different reasons. Instead of seeking to understand a question, a witness may answer defensively or with “I don’t know,” which is sometimes a valid answer, but what might be missing is a follow up question seeking clarification. The very nature of litigation pits Plaintiff against Defendant, and witnesses are so intent on getting their story out or seeking catharsis that they may actually put themselves in a bad position by answering abruptly.
Like witnesses, counsel can just as easily be led astray. Today’s lawyer is expected to answer every email within minutes of it being sent, and respond to every inquiry or problem with a solution. That doesn’t stop just because they are attending an examination for the full day. While being paid by one client to advise during an examination, they may also be checking and responding to emails by clients or colleagues about other files. They may not be actively listening and may often make assumptions and fill in the blanks of what they missed. They may not be giving their full attention to the task at hand, which translates to poor representation for their client.
The bottom line is, pay attention. This goes for everyone. Don’t be afraid to ask a question. Don’t be afraid of saying you do not understand. Sometimes you are correct in your belief about what someone has said to you, but how many times could you be wrong?