By Dr. Ken Broda Bahm:
A typical witness preparing for a civil trial often has only one good reference point for what their experience will be, and that is their deposition. That’s where they met opposing counsel, got a taste of that attorney’s style, and heard the questions that are likely to serve as the foundation for what they’re asked at trial. Some things from that deposition are going to be the same: There will be a parallel need to listen carefully and hew close to the question that is being asked, and there will be a continuing need to provide the same general answers on the same issues. But the format and focus for the testimony will otherwise be quite different.
As a new witness, you cannot help but frame your upcoming trial experience in terms that you already know. But it is also critical to appreciate the important differences between testifying in a deposition and testifying at trial, and to practice each. When I encounter a witness who has had that first experience, but not yet the second, I will tell them that the goal of telling the truth, and the importance of sticking to your message are the same, but there are four key distinctions that will make the experiences different. This is how I break it down for the witness.
1. Your Trial Testimony Will Be Two-Sided
You may already know that your testimony includes two phases: direct examination where your own attorney questions you, and cross-examination where the other side takes their turn at questioning. If you are called to the stand during the other side’s case, the cross will come first. Both phases are equally important and require some differences in style. You will want to be the same person at each phase, and to be essentially giving the same answers as well. In cross, however, you can expect the questions to be more pointed, leading, and potentially accusatory. After all, your adversary is trying to win admissions that will help them make their case. In direct examination, the questions will be more open-ended and will set you up for the chance to explain. But you will want to use your own words in both phases. In cross, you’ll want to try as much as you’re able to convey the same talking points you had, or will have, in direct. Practice both phases. Even though your direct examination is friendly, it will still help immensely for you to have a good sense of your attorney’s goals and the sequence of their questioning.
2. Your Trial Testimony Will Be More Focused
For the side taking a deposition, it is often a kind of scavenger hunt: They don’t quite know yet what the answers are, and they are turning over different rocks just to see what might be under the next one. In the deposition, they see what they can get, but in their trial outline, both sides will be focused on narrower goals. Generally, the idea is to get in, make a few clear and salient points to the jury, and then get out. The counsel on the other side is also likely to ask you only questions that they previously asked in deposition. Legal dramas notwithstanding, surprises are usually avoided during trial. For that reason, it is critical to know what you said before (so, study that deposition in advance!) and either stay within the general parameters of your previous statements, or be prepared to explain any deviations.
3. The Presence of the Jury Will Actually Make It Easier
This one can seem counter-intuitive, since many feel that the presence of the jury raises the stakes and the nervousness. But stop and consider it from the jury’s perspective: Like you, they have been taken out of their normal lives and placed, somewhat against their will, in the legal process. What they’re looking for is someone who can describe what happened and help them make a good decision. That person can be you. Just looking these jurors in the eye and talking to them can really help them to see the case from your perspective. And having that neutral audience there will probably help to make your testimony feel more natural and less abstract than the deposition.
4. Your Goal is to Convince, and Not Just to Get Through It
The motto you used to get through your deposition might have been to “Do no harm.” You may have gotten the advice that witnesses don’t win their case in depo, but could lose it, so you focus on getting through it and just answering the questions while avoiding any major misstep. But once you reach the trial stage, that ‘keep-your-head-down’ phase is definitely over. In trial, you don’t want to just answer the question; you also want the jury to find your answers and your position generally to be credible and convincing. You want them to see the case from your perspective. You are still responsible for only your lane — your own knowledge of the facts and areas of expertise — and not the whole case. But within that lane, you want to be as clear and influential as you can possibly be.
With the right preparation, trial testimony doesn’t have to be something to dread. For the witness with a good deposition under their belt, you’re halfway there.
Thanks for reading. I am a litigation consultant (bio here) specializing in mock trial research, witness preparation, jury selection, and case strategy, generally (but not always) in high-value civil cases. If you have a comment, a request for a future topic, or a concern about a current area of litigation, or a question about your own case, contact me now.
Other Posts on Trial Testimony:
- Testimony Mode: Note the Tradeoff Between Information Density and Juror Sensitivity
- Adapt to Remote Communication (Including Testimony)
- Don’t Confuse Certainty with Accuracy when It Comes to Witness Testimony