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  • Tsongas Litigation Consulting


One of the most difficult challenges in preparing a witness for trial or deposition testimony is helping them understand the unique setting that is witness testimony. It is unlike almost any other communication event. The question-and-answer format provides a certain amount of control to the questioner, making it a more one-sided event than many other settings. The obligation to respond to every appropriately made question, and the inability to ask questions in return (save for a request for clarification), creates unique challenges for witnesses.

Witnesses also have to be reminded that this is not like a lunchtime chat with friends or co-workers, but at the same time it is not a performance where they are acting out a script. This is a challenge I also faced in teaching students how to give a speech. I advised them not to get up and “wing it,” but not to script their presentation word for word either (unless it is the State of the Union or some other high level address). There is a middle ground between these two approaches, however. My first teaching mentor, Dr. John Angus Campbell, suggested a metaphor to use with students he described as “Conversation with Forethought.” I believe this metaphor can be useful with witness testimony as well.

It is important first and foremost to teach witnesses that testimony is not simply a conversation. First and foremost, the speaker must not relax and answer questions without thinking. The attorney asking the questions would prefer witnesses take this approach. Speaking “off the cuff” often results in answers and language that is contrary to the truth as a witness knows it. It takes more reflection by the speaker to ensure the answer is accurate and reflects the language the speaker would use to frame his or her response. Unlike a regular conversation where you can walk back an answer you no longer like, it is very difficult to successfully change testimony without raising concerns among the audience.

There are other differences as well. In testimony, speakers should respond with short answers and only answer the question asked. They should not correct the question and help the other side’s attorney ask better questions. They should not guess as to what the attorney means or wants. Testimony is a much more deliberate process than conversation.

It is also important, however, not to treat testimony as a performance with scripted lines and “acting” by the witness. Jurors can usually tell rather quickly when a witness is acting “fake” in some way. The lack of authenticity will quickly diminish the credibility of a speaker. That is also why it is not a good idea to completely remake a witness in preparation for testimony. It is important to smooth out some of the rough edges of a witness that might offend or resonate poorly with a jury, but asking someone to become someone they are not is dangerous.

A speaker who uses a fully prepared speech in other settings has a teleprompter or a script to help them remember their lines. A witness does not have such a luxury. Fumbling through lines that have been coached to a witness will also minimize credibility. A few select “headlines” are appropriate to make sure critical themes of the case are conveyed, especially under harsh questioning. But these should be few in number and short in duration. If the jury feels like the testimony of the witness is not their own, it will cripple their believability and trustworthiness.

The use of “Conversation with Forethought” as a strategy can help walk the middle ground between these two approaches. The conversational component is important because it will help the witness sound more relaxed and authentic. The answers appear to be genuine and sincere. These characteristics will make the testimony more believable and the witness more likable.

But the “forethought” is also vital. Consideration must be given about how a witness wants to address certain topics. During questioning, a witness must think carefully about how they want to answer each query, and not rush into an answer. Thought must be given about how a witness can better control the situation and not let opposing counsel act as the director. Teaching witnesses how to think about a deposition and how to answer challenging questions is an important component of any witness preparation.

Helping witnesses find this balance between conversation and acting will lead witnesses to the best path for successful testimony. Jurors want to feel like they are being “talked to” and not “performed at.” Finding the middle ground will result in the credibility needed to convince the jury to believe the answers given by the witness.

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