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 results in a failure 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 picks up rapidly thereafter.

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 basically repeating part of the question itself. This has two advantages. First of all, 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 the whole of their response, to concentrate. And that assures better testimony.

For example, in response to "How soon after this meeting of May 22 '09 did you have occasion to visit the construction site?" "I had occasion to visit the construction site next on May 30 of '09" slows the response down, as opposed to a simple "May 30, '09." 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 ever 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" wordy as it may be, could be more accurate.

Full sentences work, both in terms of slowing the witness down so that his/her brain is engaged before the response is offered, and of producing a more accurate response.

Classic Juror Misunderstandings

The brilliant cartoonist, Wiley Miller ("Non Sequitur"), captured the misunderstandings between men and women as few others have. For example, the wife says: "Let's go shopping." The husband hears: "Let's go drain the life force from your body." The husband says: "Honey, are you almost ready yet?" The wife hears: "Life as we know it will cease to exist unless you can alter the space-time continuum."

My experience with jurors has led me to conclude that similar misunderstandings occur regularly in the Courtroom between attorney and juror. For example, the lawyer says: "Negligence." The juror hears: "Forgetfulness." The lawyer says "Proximate." The juror hears "Approximate." The lawyer says: "Standard of care." The juror hears: "Like OSHA." The lawyer says: "Preponderance." The juror hears: "Heavy thinking."

I could go on and on. Lawyers like to say a graphic will "depict" things. Jurors need to know what the graphic will "show." The lawyer says this event was "prior" to the current one. Jurors want to know what came "before" what. And "aforementioned" doesn't even compute.

You must speak a language the jurors understand if you are to persuade them. For example, explain legal terms such as negligence so there can be no confusion with the more common use of the term, forgetfulness. Use words you used before you became a lawyer; common words, easy to understand words, words that don't require more than a high school education.

The Juror-Engaging Power of Story: Beyond the Individual

Research has demonstrated repeatedly the power of story-telling. Indeed, it's easy for most attorneys to tell the story of their injured client or the malfunction of a product. Stories of individuals, plaintiff or defense, are also fairly easy to summon. But when it comes to businesses, companies or corporations, lawyers too often forget the power of story, and give but the driest of facts.

Yet it is story that will engage the jurors, story that will enable them to relate to your corporate/business client, story that will give them points of identification to their own lives, to their experience.

I remember waiting in a corporate reception area for the attorney and client I was to work with that day. All around the walls were photographs, plaques, and other corporate memorabilia. When I asked the attorney and client for the story of the corporation, as opposed to the facts of its incorporation, they were at a loss. So I told them the story, as I had gleaned it from all that was portrayed in the reception area. Both were amazed that I could weave a story from so little. But it wasn't so little! Those photographs and plaques gave the heart of the corporation, its community involvement, the background on why it was founded in the first place.

There was more, of course, but my telling primed the pump.

Don't let your business or corporate clients be story-less entities. There is a story behind every venture, and that's how you engage juror sympathy. Look for the story, mine for it, it is well worth the effort.