1. ™
MAKING THE COMPLEX CLEAR.
Recently, I had the
pleasure of testifying as
afactwitnessinafederal
case in the Southern District
of New York. Although I have
prepared dozens of witnesses
prior to this experience, this was
my first time actually taking the
stand and, as anyone who has
ever been in the “hot seat” knows, the stress and pressure it brings can
be daunting to the unprepared. Thankfully, I employed a “practice
what you preach” game plan and completed my testimony without
breaking a sweat.
Using these simple tactics, one can overcome the anxiety associated
with taking the stand, as well as become a more effective witness,
communicator, speaker, and listener.
GET FAMILIAR
Ensure your witness is familiar with being on the stand, even if it is
their first time. Dissecting the process of direct and cross examination,
as well as redirect, with your witness will help remove fear of the
unknown. Familiarity breeds confidence and a confident, comfortable
witness has a better chance of testifying effectively.
HEAR THE QUESTION AND LISTEN TO IT
We have heard this from our mothers, our spouses and now it’s the
attorneysturn.Listeningto,notjusthearing,counsel’sinquiryallowsthe
witness to comprehend what the other person is asking and lessens the
tendency to assume he is being asked something beyond the question.
This also ensures your witness only answers what is asked and does not
offer testimony outside the scope of the actual question.
YOU DON’T KNOW IT ALL
A witness should be comfortable
verbalizing that an attorney’s
question is unclear. The witness
needs to recognize that it’s not an
attack on their intelligence if they
do not understand a question and
that they have the right to ask for
clarification. Sometimes attorneys
use the strategy of purposely asking confusing, compound, and long
winded questions, so it’s important to sensitize your witness to this
common trick.
“I DON’T KNOW” AND “I DON’T REMEMBER” ARE O.K.
We are all human and most of us don’t have photographic memories,
so it’s a good thing that judges and jurors don’t expect us to. Not
knowing or remembering the answer to every question is O.K.,
yet many witnesses think it irreparably damages their credibility.
Witnesses need to understand that sometimes opposing counsel is
trying to extract an answer or opinion that is beyond the scope of
their knowledge or expertise. Teaching your witness to listen for
invitations by counsel to pull him/her off their knowledge base and
how to respond truthfully (only to questions they can answer within
their personal knowledge) is critical.
IS THIS WHAT YOU SAY IT IS?
A real credibility killer is when your witness qualifies a document
only to be impeached by the same piece of paper two minutes later.
Make sure they understand the importance of thoroughly reviewing
any document (beginning to end) offered before proceeding with
the examination.
BE POLITE, BUT SHORT
The best answers are short, non-argumentative, and polite; one question
should warrant one answer. Typically, witnesses like to expand on their
answersorvolunteeradditionalinformation–itissimplyhumannatureto
wantto“help.”Bewaryofpotentiallydamagingandunnecessarytestimony
your witness may offer and caution them
appropriately, further emphasizing they can
expound during re-direct.
THE BOTTOM LINE
Relievingwitnessanxietycanbeadifficult
task to overcome. As a result of being in
court every day, attorneys sometimes
forget how stressful taking the stand
can be. Their focus is often on content
and not clarity. Nonetheless, by training our witnesses to listen,
think, and then speak their answers with brevity and certainty, we
can help reduce their anxiety and help them become more effective
communicators. The goal of testifying is not always about winning,
but rather not losing and we all know how quickly a poorly prepared
witness can torpedo a case.
Taking the Stand:
A First-Person’s Perspective
By David W. Mykel, M.A.
The goal of
testifying is
not always
about winning,
but rather
not losing...
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