What most witnesses are never told, in preparing for deposition or trial, is that when the questioning begins, they have rights they can assert that will allow them to not only survive the experience, but to provide jurors with the information they need in a calm, confident and credible manner. They are told what to do and what not to do — a set of instructions that, under the pressure of examination or cross, often get lost or are forgotten in the rarified and sometimes highly charged environment of the deposition or courtroom. So, what’s a witness to do?
Testimony proffered by witnesses is often the most compelling and memorable form of evidence in any trial. The value of witness testimony can be greatly enhanced or, conversely, undermined by the lack of three key factors: credibility, clarity and control. While meeting these three challenges may be the ultimate objective of all deposition or trial testimony, getting there is not always as easy as we would hope.
Witnesses come in many sizes, shapes, attitudes, aptitudes and unique characteristics, not to mention the multiplicity of idiosyncratic behaviors that we all, as human beings, exhibit. No matter how experienced or inexperienced a witness may be, when the questions begin, the dynamics change and the witness will either measure up or melt down, and the result can weigh heavily on how jurors perceive the credibility and value of the testimony given, and ultimately, on the outcome of the trial.
The key to optimum witness performance is good preparation. There are many different approaches to witness preparation. In most cases, attorneys will briefly discuss the process — what the witness can expect and issues that most likely will be addressed.
Unfortunately, the greater part of preparation time is spent dealing with substantive matters — going over details and reviewing points and issues that the attorney hopes to make or pitfalls that he or she hopes the witness will be able to avoid. Somewhere in the discussion, the attorney will usually give the witness some instructions on “how” to testify, usually summed up in 10 or 15 minutes as: “Don’t be nervous,” “Keep your answers short,” “Maintain eye contact with the attorneys and jury,” “Don’t be argumentative with opposing counsel,” and “Don’t worry, you’ll do fine!”
This list of instructions only adds to the witness’s stress, trying to remember all of that and keep the facts straight, too. What the witness hears is somewhat akin to what a teacher might have told a child just before the school play: “Don’t forget your lines!” This just adds to the pressure.
Prepared properly, most witnesses can be made virtually immune to attack and intimidation. By understanding and availing themselves of rights that they are entitled to during examination and, particularly, during cross-examination, they can achieve levels of performance that often surprise even their own lawyers.
The most important aspect of preparing a witness to testify is to help him or her to understand what those rights are. The most effective witness preparation model I have ever used has four key elements: (1) getting to know how the witness communicates in his or her normal world, away and apart from the dynamics of being involved in litigation; (2) allowing the witness to gain an appreciation for what rights he or she has in the deposition and trial setting; (3) practicing the art of critical listening and word selection in framing answers; and (4) identifying and capitalizing on strengths in non-verbal responses, and making adjustments to weaknesses and behavioral distracters. This article deals with the second of these elements, what I will refer to as The Witness Bill of Rights.
More than 15 years ago, it became apparent to me that most attorneys do not spend enough time accentuating the positive, but rather concentrate primarily on inoculating against the negatives in preparing witnesses for trial. This approach, while it has its merits, often does more to increase stress levels and anxiety, by pointing out all of the things that can go wrong during testimony.
There is another, more positive approach that will go a long way to reduce anxiety and to build confidence and control. The Witness Bill of Rights is a positive and productive tool in getting a witness ready for deposition or trial. It is a process of reminding the witness of key principles of communication that he or she can employ to withstand even the most aggressive questioning and have the confidence to earn the credibility and trust of jurors to whom they will offer what they know.
The Witness Bill of Rights
- The witness has a right to understand what a question means before trying to answer.
- The witness has a right to hear all parts of the question clearly before answering, and to request that the question be repeated if he or she has not heard every word and understood the question.
- The witness has a right to say what he or she means and to correct any misstatement.
- The witness has a right to understand the specific time period of an event or incident that is the subject of the question.
- The witness has a right to be sure of his or her answer rather than having to guess.
- The witness has a right to not answer questions based on inaccurate assumptions or inaccurate information.1
- The witness has a right not to know or not to remember everything that happened.
- During cross-examination, the witness has a right to disagree with the conclusion the questioner has reached (the “red-flag” questions).
- The witness has a right to answer only one question at a time.
- The witness has a right to take the time to consider the question, to choose his or her words and to formulate an answer before responding, thus controlling the pacing of the examination.
Viewed simply as a list, the above rights may seem obvious to attorneys who understand them almost intuitively. For a witness, however, who has never been through the process — or even for experts and those who have testified previously — it is rare that they are ever told or are given an opportunity to consider how important understanding these rights really is.
The rights are theirs to assert and will allow them to push back, to avoid letting the questioner testify, to control the timing and pacing, to hear and process the questions, to provide answers in words that are their own, and to maintain control, without appearing defensive or combative. Of course, it is important for the attorney to take the time to discuss specific, case-related examples of how witnesses can employ each of these rights as they are presented in the prep session. Afterward, the witness usually will feel empowered and less intimidated by the prospect of testifying.
The ultimate objective of this part of the witness preparation model is to help the witness develop what I refer to as the “Three C’s” – Calm, Confident and Control. What is not so amazing is that it really works!
Even if an attorney talks in general terms about these principles, there is a right way and a better way to accomplish them. It is one thing to say, “You can do this.” It is quite another thing, and far more empowering, to say, “You have a right to do this, and you don’t have to forfeit that right under any circumstances.”
You will see a measurable difference as the witness comes to appreciate the power he or she possesses. More importantly, you will see it as your witness testifies confidently and competently in deposition or trial and is excused with a smile.
No matter how difficult or competent a witness may appear, good preparation is the key to the credibility that attaches to calmness, confidence and control. Having someone assist with witness preparation who is trained in communication, rather than just the law, is always a plus. Having a non-lawyer communicator work with the witness makes the other three segments of the model more efficient, preserves the essential rapport between attorney and witness, and lets the witness know that the attorney is doing everything possible to protect him or her, and to make the experience of testifying — an inherently difficult process — at the very least tolerable, and hopefully even an empowering experience.
R. Craig Smith is the senior trial consultant at Prolumina Trial Technologies, in Seattle. He is a frequent CLE presenter, author of numerous articles on courtroom communication and trial strategies, and is the author of “Championship Law – Seven Keys to Winning Performance in the Courtroom.” He can be reached at 206-622-6700.
1 But see CR 30(h)(3). A witness may refuse to answer a question only on the grounds of privilege. A witness confronted with inaccurate information should ask for clarification or, to more effect, point out the inaccuracy, e.g., “That’s not what happened.”
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