By Dr. Ken Broda Bahm:
Let’s say that you know little to nothing about the actual legal process outside the distorted Hollywood lens. But the one thing you do know is that you’ll be testifying under oath at some point in the future. You’ll be on the stand, or you’ll be called in for deposition. Your counsel says not to worry, that it is too soon to start getting prepared, and that she’ll be in touch once you get closer to the date…a date that could be months from now, or more. Are you a little nervous? Do you, perhaps, wish there was something you could do in the meantime in order to build some familiarity and confidence? Well, one thing you could do is seek out some general advice in order to know what the comfortable and prepared witness should aim for. As of this coming January, you’ll have a new, tailored and effective resource to turn to. Crown King Books will be releasing The Articulate Witness: An Illustrated Guide to Testifying Confidently Under Oath by Brian K. Johnson and Marsha Hunter, two Minneapolis-based communications consultants. Based on a review copy I received, I can say that the book is concise and engaging, with a solid practical focus on the confidence-building behaviors needed by all witnesses.
The book is divided into four sections: “Behave Confidently,” “Think Confidently,” “Speak Confidently,” and “Put It All Together.” At just $8.99 for print and $6.99 electronic, I could see law offices wanting to have a large stock of these books on hand in order to distribute to all their witnesses (A note to the publisher: Consider bulk pricing). Having read the book, I’m devoting this post to highlighting a few of the advantages of the book, as well as a few limitations that, while not criticisms, are important for attorneys to take into account when recommending this book to their witnesses.
Three Advantages…
The book covers much of the common advice that witnesses ought to receive. Here are three of the stand-out points that enhance the usefulness of the resource.
1. It Is Short
That is not to say that it is light or shallow, but it is definitely a quick read. With a spine measuring less than a quarter of an inch, in comes in at only 49 pages, including copious illustrations. That means that witnesses won’t be intimidated if you hand it it to them, and even a careful reader participating in all of the exercises is still likely to finish it in around 30 minutes to an hour.
2. It is Practical
The book begins with the basics of breathing and sitting. Then it covers the specific aspects of communication that the witness can control, like relaxing, pausing, listening, and phrasing. On nearly every page, there are simple illustrations (by Barbara Richied), which are particularly useful in conveying the authors’ points on face and body. Throughout, the pages are arranged like handouts with short descriptions, illustrations, and a “Try It” exercise at the bottom of every page.
3. It Provides a Solid Focus on What’s Often the Biggest Barrier: Confidence
The book begins with the recognition that witnesses face an unfamiliar and threatening terrain. We have written before that confidence can be key to credibility. For that reason, it is appropriate that the focus of The Articulate Witness is really on the confident witness. The authors begin and end with a point of a feedback loop between feeling and behavior: If you behave confidently, you are more likely to feel confident, which in turn supports your continued confident behavior. Overall, the witness will find not just reassurance in this book, but a number of very specific strategies for supporting their own confidence on the stand.
And Three Reasonable Limitations…
The book hits its target, succeeding where it aims to succeed. At the same time, being a very short and focused book, there are some limitations that attorneys should be aware of in recommending or distributing the book.
1. There’s More To Testimony Than What’s Covered in the Book.
The authors focus on confidence, not content. Many attorneys will see that as completely appropriate since they will want to discuss for themselves any strategic issues regarding what the witness says. At the same time, the authors acknowledge to the reader that, “You will benefit from understanding some of the lawyers’ tactics,” and in my view, they should have done more to preview those tactics. They address leading questions, rapid fire questions, and attempts to cut-off answers, but there is much more in the lawyer’s toolbox: embedded assumptions, planting words, relying on the witness to say too much (by speaking in paragraphs) or too little (by using single-word answers). A critical point, in my personal view, is that a witness should strive to answer in their own words, even — or especially — when faced with a leading question. Readers could take from the text that they only have a right to give a full and complete answer when counsel is asking an open-ended question.
2. Its Focus Is on Trial, Not on Depositions or Hearings
Depositions are mentioned on one page, with the main point being who attends. Through the rest of the book, the focus is on a witness who is testifying on the stand in front of a jury. That may be the appropriate focus for the typical lay witness in a criminal context, but given the prevalence of negotiated pleas as a final resolution, some attention could be given to sworn statements out of court. In a civil litigation context, depositions are far more common than trial testimony. A reader would not necessarily appreciate the important distinctions between deposition testimony and trial testimony. Perhaps that just leaves room for a supplemental book: The Articulate Deponent.
3. It’s a Supplement, Not a Substitute for In-Person Preparation
Attorneys know that the witness will not be “prepared” after simply being handed a book. But witnesses may not know that. While the authors acknowledge that “reading silently will only get you so far,” they use that acknowledgement to emphasize the importance of doing the communication exercises in the book. The message that needs greater emphasis — if not in the book, then from the person recommending or distributing the book — is that the text is not a substitute for one or more meetings with your lawyer. In addition to an opportunity to talk about the substance of the case, the witness needs a chance to engage in mock testimony, with their own attorney taking them through the expected examination.
The book does not answer every question, but it does play an important role in providing simple and concrete strategies for shoring up the foundation of good testimony, which is confidence. Still, a confident witness can make terrible mistakes in the context of any given case. Experienced consultants and attorneys have the job of going beyond confidence to focus on testimony that is truly protective as well. Those consultants and attorneys may well find specific areas of The Articulate Witness they disagree with. For example, I believe that the authors’ advice to “chunk” a witness’s answer by pausing at regular intervals could lead to awkward communication and opportunities by opposing counsel to interrupt. If the book is appropriately seen as a starting point for the witness, however, those small differences of opinion should not be a barrier to using the resource.
The real barrier may be the attorney’s typical nervousness on what a witness reviews. Expecting the question, “What have you read or reviewed in order to prepare for your testimony today?” many attorneys prefer a “do it yourself” approach in which any advice is conveyed verbally in the office, and under the cover of work-product and/or attorney-client privilege. On that point, I defer to the lawyers, but it does seem that a book like this, focusing just on the process of building comfort and good communication, should not fall in the category of a legitimate area for inquiry by opposing counsel. And even if it did, I think it could be more beneficial than harmful for a witness to acknowledge it: “Yes, I am a little nervous sitting in this box — just about anyone would be — so I wanted to read this short book on how to calm down, stay focused, and get through it.” I think jurors would identify with that. Overall, I think The Articulate Witness is a positive contribution in demystifying the testimony experience. It is worth reading and recommending to your witnesses.
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Note: Reviews aren’t the focus of this blog, but I do occasionally review litigation-related books and programs, and I’ve given both favorable and unfavorable reviews. It should go without saying, but these days it doesn’t: This is an independent review. I’ve received nothing for it, and I have no relationship – business, personal, or otherwise – with Crown King Books, “The Articulate Witness” or its authors.
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Other Reviews:
- Leading Motives and Trailing Personal Stories: Lessons in Jeffrey Toobin’s “The Oath”
- Learn from High-Profile Cases: A Review of ‘Acquittal’ by Richard Gabriel
- Give Your Witness a Good Foundation: A Review of “The Perfect Witness” Online Training
- Don’t Select Your Jury Based on Demographics: A Skeptical Look at JuryQuest
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Johnson, B. K. & Hunter, S. (2015). The Articulate Witness: An Illustrated Guide to Testifying Confidently Under Oath. Crown King Books.
Image Credit: Book cover graphic used with permission of Crown King Books