Help Your Witness Deliver Effective Testimony with Full Sentences

 

Rare is the witness who isn’t anxious, worried, scared--even terrified--during deposition or cross-examination. Often this leads to a rapid pace of speech. Not only that, but witnesses tend to believe that if they just blurt out their response, they’ll get this dreadful experience over with sooner.

Now, there’s nothing wrong with speaking quickly, in and of itself, but speaking quickly often means the client fails to think things through. Failing to think through a response can often lead to flawed testimony if not downright disastrous testimony. Unfortunately, simply telling a witness to “slow down, speak more slowly” may work for a response or two, but with the pressure of nerves, the witness’s pace then picks up rapidly.

One technique that works well while preparing the witness for their testimony is to encourage the witness to speak in full sentences and to do so by first repeating part of the question. This has two advantages. First, it forces the witness to listen better to the question asked. You can’t very well repeat part of the question if you haven’t carefully listened to it. Secondly, it slows the response down. The witness is forced to think through their whole response, to concentrate. And that ensures better testimony.

For example, in response to “How soon after this meeting of May 22 did you visit the construction site?” “I visited the construction site next on May 30” slows the response down, as opposed to a simple “May 30.” It also helps the witness stay on track with the subject at hand.

This is even more critical with a compound question. For example, “Do you know whether you saw water in the trench or ever examined that trench before May 30?” The quick response of “No” could be inaccurate as to either seeing the water or examining the trench. A full-sentence response, such as “I did examine the trench before May 30, and I did not see water in the trench before May 30” may be wordy but could be more accurate.

Full sentences work to slow the witness down so that their brain is engaged before the response and to produce a more accurate response.

 

Expert Under the Gun of Cross? Multi-sided Response to the Rescue

For your expert witnesses under the gun of cross-examination, usually the most problematic answer is a flat “yes” or “no.” Science holds few absolutes to be true, thus most scientists (which is the majority of your experts) are uncomfortable with an uncategorical “yes” or “no” in response to many of opposing counsel’s questions.

Yet opposing counsel has one goal in mind: get that expert to say “yes” to certain questions and “no” to certain others.

A useful technique is to suggest to your expert that they respond with a qualifier in front of their “yes” or “no,” such as: “In this situation, yes.” “Under certain conditions, no.” “When X is detected, yes.” “In the presence of Y, no.” And so on.

These responses open the door to asking your witness later, why they qualified their answer in such a manner.

Now, here’s where it gets really interesting: the results of meta-research on 107 different studies conducted over 50 years on persuasion and sidedness show that two-sided arguments are more persuasive than their one-sided equivalents, as long as counter-arguments are raised when presenting the opposing view.

So, in telling the jury the rationale behind the qualifier, the expert can present their thinking. For example: “It could be said, as opposing counsel’s expert stated, that X is a determining factor, however, more recent studies show that Y is the more decisive, thus the basis for my opinion.” This format serves to present the two sides of the argument, even as it raises the counter argument.

According to the meta-research, not only is such an approach more convincing, it also boosts the speaker’s credibility.

Use “Less is More” to Win in Court

 

Some courts are lenient with the amount of time allotted for a trial, some are not. It certainly can seem impossible, sometimes, to jam the amount of evidence and testimony you have in the number of hours permitted.

And yet, as is so often true of many things in life “Less is more.”

On being debriefed, some jurors stated that the matter at hand was treated with less than full consideration as the trial stretched on and on. Jurors began discussing plans for the various events in their lives, sharing thoughts about how to deal with children, difficult bosses, and so on, clearly impatient and bored with what they were experiencing as an unnecessarily long process.

Jurors who may have had the patience to sit through long trials and long deliberations some 10 or so years ago are no longer willing to be held hostage past what they consider a sufficient rendering of the facts and testimony. Our world has sped up tremendously: we abbreviate everything, we rely on bullets and headlines, and we expect everything to happen quickly, as in “now.”

This is one of the great advantages of focus groups: attorneys are forced to reduce their entire case to a mere hour and a half, which puts a glaring spotlight on what is essential and what could be left aside.

Yes, you still must get across your points, you must still develop testimony and present evidence appropriately. However, a great deal can often be trimmed from the presentation of your case without losing impact. If anything, you generally gain impact from being succinct.

Handling the Angry Witness

You’re gearing up for trial, you hardly have the time or patience to deal with an angry witness. Yet there you are, in the unenviable position of having to prepare a witness who is angry for any number of reasons:

- The witness is a client, angry that this matter couldn’t be settled or that it even is in litigation at all.

- The witness is furious at being “required” to testify.

- The witness has healed or substantially recovered from the incidents at issue and resents having to deal with “it” all over again.

Whatever the witness’s reason, he or she is mad! And only too happy to tell you all about how aggravated and upset they are. You try to get down to the business of prep with “OK, but we’ve got to focus on preparing you for your testimony,” which is labored, halting and difficult at best.

There is a more effective way. People in highly charged emotional states need FIRST to have their emotions thoroughly acknowledged, in order to clear their minds and hearts sufficiently to think rationally.

Start by reflecting your witness’s emotions: “It is frustrating to have to go through this again.” Let them respond with another emotional salvo, and follow that with something like “This has been really hard on you.” By now, the witness will have calmed down some, because you’re not resisting their emotion, you’re acknowledging it. Notice how the acknowledgement is done in third person, non-inflammatory terms. Once you sense that the witness is less angry, you’re ready to open the prep session with the use of the word ‘and.’ “And that’s why we’re here today—to prepare you so the jurors can understand your perspective.” 

More than anything, emotionally wrought people want just one thing – to be genuinely heard. 

 

Reaching Jurors on Different Levels

A successful lawyer is one who knows how to persuade jurors, that much is obvious. What is less obvious is that jurors are persuaded on several different levels. One level that is often ignored is the difference levels in how we each perceive information, our unique perceptual modes.

An individual’s perceptual mode determines the primary way that individual perceives events and situations: we see it, hear it or feel it. That is not to say that people who favor a visual mode, for example, only experience the world through their eyes. Rather, they first and predominantly experience the world in visual terms. Visually oriented people make use of the auditory and feeling modes, but only secondarily.

How does this apply to the courtroom?

Each of us tend to express and receive information in our preferred perceptual mode, to the relative exclusion of the other modes. Many men, for example, are visually oriented, and thus are focused on the visual. Women are frequently more kinesthetically (feeling) oriented, and relate to kinesthetic expression.

Figure out how you see the world: are you more likely to say “I see what you mean” “I can’t picture it” (visual), or “that sounds good to me” “Doesn’t ring a bell for me” (auditory), or “I understand how you feel” “I want to get a handle on this” (kinesthetic)?

Deliberately express yourself in all three modes during trial; make a conscious effort to communicate in those modes that are not your predominant one. In so doing, you will more effectively reach and therefore persuade all the jurors, not just those who resonate to your native mode.

Conviction vs Slash-and-Burn

It is often tempting to rip into opposing counsel, or disparage his/her client in emotionally charged vitriolic words, yet such an approach rarely wins over jurors. Sure, you have the shock value of a momentary deer-in-the-headlights stunned witness or a knee-jerk angry riposte from opposing counsel, but in the long run, that’s not what convinces jurors.

Jury studies systematically show that jurors tend to be highly critical and disapproving of such tactics. One time during trial, no problem. More than that, jurors will turn on the offending attorney. Over-aggressiveness has repeatedly been pointed out in jury debriefings as an advocate’s most common flaw.

This is not to say you must turn into Mr./Ms. Meek, not at all. It simply means that you persuade jurors more with positive arguments, such as appealing to devotion to an ideal, or the well-being of the community at large, or the importance of justice. These can be expressed with great vigor and emotional commitment, as long as you are sincere in your delivery.

Conviction in the name of a righteous cause is what wins jurors over, not slash-and-burn verbal onslaughts.

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Read my latest article, "Managing the Angry Client 101" in the September issue of Plaintiff magazine. Click here.