By Dr. Ken Broda Bahm:
Witnesses, I’d like to have a word. You know the most important audience for your testimony — the jurors in the courtroom with you, or the future jury who might someday see a clip of your deposition? That audience is kind of pulling for you. You aren’t a lawyer, and you aren’t a judge. You are a normal human being just like they are, and they want you to do well. They know that you’re the one who was there on the scene, closest to the facts. You’re the one they’ve been waiting to hear from. Even if you’re the civil defendant and stand accused of something wrong, they still want to give you the benefit of the doubt. They know it is hard to sit in that seat being badgered by lawyers, and they wouldn’t want to do it themselves. So, in a way, they are already on your side. But too many of you will take that initial positive perception and mess it up. In the way you communicate or the way you present yourselves, you might create barriers that stand in the way of that initial positive perception.
You don’t do it intentionally. Instead, you will unconsciously allow your own attitudes about the case or the stress of the situation to leak into your communication in a way that sends that jury the wrong message. So you’ve got to pay attention to how you come across. No, it isn’t a matter of just answering the questions, and no it doesn’t matter if your content is 100 percent correct. If you interfere with the credibility that jurors want to give you, then you can undo risk undoing even the best substance in your testimony. So take notes: In this post, I’m going to cover five “Don’ts” when it comes to how you come across. If you work on avoiding these, you will make it more likely that your underlying testimony, along with your audience’s default positive impression, will come shining through.
Don’t Be Arrogant
Okay, I get it: You have an important job that doesn’t involve testifying here in court. You’re a high-level surgeon, or a fancy business executive and — at least in the back of your mind — you resent that you need to be here at all. That’s fine, and it’s understandable, but don’t let the jurors see that. All they want to know is that you are here and ready to help them make what is perhaps one of the most consequential decisions they’ve made in a long time. So help them, and be humble about it.
Don’t Be Combative
I also understand that you’ve had plenty of time to nurture some animosity toward opposing counsel. He knows how to push your buttons, and is responsible for your sleepless nights. But just remember this — you are not talking to the lawyer when you answer questions. Instead, you are talking to the jury, or you are talking to the record that might some day be shown to a jury. That jury has given you no offense and no cause for anger. So while opposing counsel has the right to pick the questions, that’s the extent of it — all of your answers should go to the jury, and with them, there is no reason for argument, or games, or sarcasm, or spite — just clear, patient, honest, helpful answers.
Don’t Be Evasive
You have good reason to be suspicious of the other side. If that attorney is starting a sentence with “Wouldn’t you agree…” then before she says another word, you probably already know that you don’t agree. But take your time. Listen. Think carefully. And don’t fight when you don’t need to fight. You do want to choose your own words, and not accept those words blindly from an adversary. But you also want to admit the sky is blue when it actually is blue. You want to come across as someone who has nothing to hide, because you actually have nothing to hide.
Don’t Be Uncertain
I know your lawyer has told you that if you don’t know, then the answer is “I don’t know,” and if you don’t understand, say you don’t understand. That is good advice, but don’t get cute with it. Feigned ignorance or incomprehension is never a good look, and never a good way to be useful to that jury. When you don’t know, you don’t know. But when you do know, answer directly without hiding anything and without making the opposing counsel chase you for it.
Don’t Blame Yourself
Finally, we know that the only reason you are here as part of this legal process is that something bad happened. And I know you wish that bad thing didn’t happen. You probably are looking back now with the benefit of hindsight and thinking of ways that you could go back in time and undo it. That is natural, and it is human. But it isn’t particularly helpful to your current mission. That mission is to talk about what you knew, and thought, and did at the time, without the unrealistic condition of knowing the outcome. If you let your understandable sadness over the outcome turn into self-blame about your own actions, the only one you are helping is the other side. So compartmentalize. In one compartment, it is sad and you wish it didn’t happen. But in the other compartment, you did your best and would stand by those decisions today.
All of this takes some practice. Testifying, for most of us, is a pretty weird situation, and it can be natural to act a little weird in a weird situation. You’ll feel wary, guarded, and maybe defensive. So take some time, role-play the testimony with your lawyer. Get used to it. Once you are able to come across as someone who just wants the jury to understand what happened from your perspective, you can get past the obstacles. And once you’re past the obstacles, you will have a jury who wants to believe you.
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Other Posts on Witness Mindset:
- Witnesses, Don’t Get Too Comfortable
- Find a Mindful Way Out of the Stress of Testimony
- Testify Without Contempt