By Dr. Ken Broda Bahm:
Jurors often identify with the fact witness, and for a good reason. If there is one person in the courtroom with whom they have the most in common, it is the person in the witness chair – the person who also has no specialized legal training, and was, like them, pulled into the courtroom based on something other than personal choice. That basic affinity can mean that in a conflict, the juror is going to be implicitly pulling for the witness. The exception occurs when witnesses give jurors some reason to set aside that trust. One sure way to set aside trust is to adopt a tone that rubs jurors the wrong way. Fact witnesses who come across as aloof, arrogant, irritated, intense, combative, sarcastic, disconnected, condescending, or dismissive in tone will give jurors permission to side instead with the attorney who is trying to dismantle their testimony.
Witnesses need to strike the right tone. At a general level, that seems pretty obvious, but in practice it can be a little more complicated. Witnesses need to strike a careful balance on a number of fronts and need to avoid many common pitfalls. And they need to do all of this while still keeping their focus on communicating naturally and telling the truth. Making that happen in either deposition or trial testimony requires more than just the advice to be careful about their tone. In this post, I’m going to share 11 common reminders I give witnesses and the attorneys working with them.
1. Don’t Be a Sheep
The number one item on opposing counsel’s Christmas list is that you’ll be a compliant witness. According to their plan, you will follow along like a sheep, giving a lot of “Yes” and accepting the trail opposing counsel lays out. Testifying effectively on the facts requires that you be the source of information and not a simple rubber stamp confirming the story as the other side lays it out.
2. And Don’t Be a Wolf
You can’t be a pushover, but you can’t push back too hard either. The witness who snarls back, appearing uncooperative and combative seems to be hiding something — or worse, like another one of the attorneys. The right tone requires a balance – a cooperative yet independent voice.
3. Practice, Don’t Just Discuss
Striking that balance isn’t natural, and isn’t just a matter of knowing the principles. It has to be practiced to the point that it becomes internalized. Instead of having long discussions focused on do’s and don’t’s, attorneys and fact witnesses need to spend substantial time on mock testimony in order for the witness to get feedback and to get a feel for that balance.
4. Own Your Words
Every word contributes to the overall tone of the message, and opposing counsel will choose her words carefully as attorneys are trained to do. Take control of your own testimony by choosing your own words and answering in a full sentence instead of just “Yes,” or “No.” By answering on your own terms, you’re best able to protect the record and ensure that you aren’t buying into a tone that’s being chosen by your adversary.
5. Use Video
Every word matters, but the words that create the transcript contribute only part of what goes into the tone of testimony. Facial expression, vocal intonation, posture, and pace all convey an attitude, and that attitude will be critical in determining the way jurors assess credibility. That all makes it useful to employ video as an important step in preparing for trial testimony or for deposition testimony when it’s been noticed for video.
6. Aim at the Right Audience
Who are you talking to? Counterintuitively, it’s not the other person in the conversation – the questioning attorney. Instead, the people you’re talking to are the jurors – that’s a helpful way to think about it. The attorney just gets to pick the questions, but your answers are ultimately for the jury. Even in the case of a deposition, your focus should be on a potential jury that could someday hear this testimony. That focus helps to keep your tone in check – you aren’t fighting with counsel, you’re patiently explaining to a jury.
7. Take Your Time
There should be no rush to get through testimony either in trial or in a deposition. Speak at your own pace (not opposing counsel’s) and make it a point to pause before you answer for just about any question that requires recollection, judgment, or any other kinds of thought. That pause can be critical in two ways: It prevents opposing counsel from controlling your tone by tricking you into following their chain through a quick series of leading questions, and it gives you time to think. Remember, it is your time, not their’s.
8. Teach, Don’t Advocate
The last thing jurors want to see is just another lawyer in the witness box, or someone who is acting like an advocate. Your tone should be one of “Let me help you understand this” and not one of “Here’s why I’m right.” Jurors will make their own decision, but hopefully they will do so aided by a complete understanding of the testimony from your perspective. For fact witnesses in most situations, your job isn’t to convince the jury, it is just to clearly explain.
9. Don’t ‘Wear’ Your Tension
Testifying is tense business. The stakes are often high and, for those moments on the stand, all of the eyes are focused on you. Just to add to the pressure, a smart and highly-trained professional is at the lectern trying to trip you up. All of the natural tension arising from these circumstances can sometimes find a home in your body: Your face turns stern, your eyebrows furrow, your mouth gets tight, your shoulders hunch, and your hands start to fidget. You’ll never be — or at least you shouldn’t ever be — fully relaxed, but your aim should be to use video and other forms of feedback to keep those symptoms under control.
10. Convey Certainty
Jurors are focused on what you say, but also — and perhaps even more so — on how you say it. Are you confident or do you hedge? Are you hesitant or are you focused and definite? Simple confidence goes a long way, since jurors will often decide whether opposing counsel scored a point or not based on how you react. So use practice sessions in order to get as comfortable as possible with your testimony and the testimonial process itself.
11. Be the Same Person in Direct and Cross
Your lawyer is your friend and opposing counsel is your adversary. Given that, it is natural to be more relaxed, more conversational and unguarded when your own lawyer is walking you through the questions you discussed, and then to be more guarded, skeptical and argumentative when the opposing counsel takes the lectern. But it is a mistake. It suggests to the jury that your direct examination is staged and your cross-examination is a source of concern. Instead, show jurors a consistent tone and persona: For both, your focus is on the jury rather than the questioner, and for both, your tone is one of patient and helpful explanation.
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Other Posts on Fact Witness Communication:
- Give Your Witness a Good Foundation: A Review of “The Perfect Witness” Online Training
- Counterpunch: Ten Ways to Fight Back on Cross
- Witnesses, Don’t Get Too Comfortable
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Photo Credit: Taken by the author (a close up of the kid’s electric guitar)