On the Witness Stand - Do This, Don't Do That

(Author’s Note: The last time I checked, humans are still litigating administrative law cases before state utility commissions. Robots and Artificial Intelligence might be enlisted for some rudimentary writing tasks, but flesh-and-blood people are still asking and answering questions.)

The situation:? Let’s say you’re on the witness stand in a regulatory proceeding before a state commission. You are supporting expert testimony filed under your name, or perhaps you are defending a specific part of a large application filed by a utility company. The company is seeking a rate adjustment, or approval of cost recovery for a major resource investment, or approval of new efficiency and conservation programs. Your job is to do well, and you’ve never been on the witness stand before now.

What should you do? I have prepared hundreds of witnesses facing this challenge, and I have a few suggestions:

Do your homework. Know your own testimony backwards and forwards. You probably worked with others to prepare the testimony, but it’s got your name on it. Interveners and opposing counsel have spent considerable time looking for holes, inconsistencies, or vulnerabilities. Don’t make their job too easy.

Don’t get pushed around. Aggressive questioning by opposing counsel is common. Some like to question at a rapid pace, interrupt your responses, or put words in your mouth as they paraphrase your testimony. Don’t adapt to their pace and tone; establish your own approach. Don’t buy into their dramatic performance.

Do make your point quickly and completely. You might feel more comfortable while wandering through a long lecture full of history and context, but the witness stand is not the right setting for that. You are contributing to a record that will inform a decision by regulators. Baggage does not help.

Don’t negotiate on the witness stand, and don’t commit to decisions that are above your pay grade or decision-making authority. Opposing counsel might ask if you (the company) could accept less cost recovery or make significant changes to your resource planning, but your job is to support what’s in your testimony, not to speculate on what could end up in a settlement.

Do listen carefully to the questions. As a general rule, the longer the question, the shorter the answer. A long, meandering question often signals a lack of understanding by the questioner. There might be a legitimate query lurking in the word salad. Take a moment to dissect it and then—to the relief of everyone else in the room—provide a brief answer.

Don’t accept false premises, misinterpretation of data, or erroneous characterizations, and don’t let them linger in the record without a correction. Fix them quickly and then respond accordingly.

Do flash your expertise. It’s unlikely that anyone else in the room knows your subject matter as well as you do. Think like a professor teaching a class and look for opportunities to not only increase the understanding of your arcane subject matter, but also to send a signal to others that they will not be able to outflank your knowledge of a complex topic.

Finally, do understand how your work fits into the larger picture. I’ve seen too many witnesses who are truly experts in their own discipline, but then lack understanding of how their role supports the larger goals of safety, reliability, customer service, or regulatory compliance. Spend time with people outside your area and learn how the pieces fit together.

(Author’s other note: This a free primer that offers some basics of witness preparation. Contact me if you’d like to discuss prep in greater detail or explore overall strategies for regulatory matters.)

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