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So, You Should Testify? What to Count on as a Witness in a Private Damage Case

Preparation and time are great assets for a witness that can unfold a path to compelling and rich testimony.

Nearly twenty years ago in a wrongful death trial, I was a new lawyer sitting second chair in a complex matter against the State of Arizona. The teenage son of the decedent sat frozen in the witness stand, eyes cast down, legs in grey trousers outstretched in front of him. His long arms met tightly knotted fingers in his lap. The work of getting him ready for testimony never prepared the trial team for his awkward social withdrawal. His voice was quiet and mumbled, he shifted self-consciously rarely lifting his eyes from his black loafers. The testimony came off as shallow, distant and devoid of much emotion. Despite prevailing on the high gross negligence standard, the jury returned a disappointing verdict.

I spent the better part of 20 years recovering from those minutes of tragic testimony vowing that my witnesses would always be ready for testimony. Working as a witness consultant for the last several years, the following includes a quick summary of the best ten tips for preparation if you are called to testify at deposition or trial:

Start early/meet often – Especially if you are nervous, tell the lawyer expecting to call you as a witness that you would like to go over your testimony in person. Don’t be concerned about asking for more than one meeting. Starting early gives you an opportunity to plan for the unexpected. 
Know the rules – Knowing what to expect, who will be in the room, what the topics are, is half the battle of conquering nerves. 
Know where you fit – Ask the lawyer about theories of the case. Why do they need you and how is the other side trying to portray a different case? Are you a “fact” witness observing a collision? Are you a “damages” witness and have to testify about an employee with a brain injury? Knowing the evidence you are expected to fill in will put your testimony in context. This helps with completeness and determining if there are necessary details to supplement. It will also provide an understanding of what parts of your testimony the other side is likely to target on cross examination.
Listen –Ensure you a within the scope of the question and not going beyond with unhelpful detail. Don’t volunteer information. It is the lawyer’s job to ask appropriate questions and adding details you haven’t discussed in advance is usually counter-productive.
Relax & practice– Practice breathing, speaking slowly, relaxing your jaw (so you aren’t nervously clenching), or rubbing the inside of your wrist as a signal to yourself to trigger calmness. Lawyers will often change their pace or intonation to elevate a witness’ defensiveness. Maintaining calm despite antagonizing pressure or confrontation is key to credibility. If the lawyer calling you is willing, work with them or ask for a witness consultant to practice scenarios that can resolve anxiety. 
Role play – Ask the lawyer (or a skilled friend to play lawyer) to ask questions and record you on video. Watch the video yourself with another honest critic. You will be amazed at the number of verbal or physical ticks displayed. Armed with this data, you can practice sitting still, speaking clearly, and trimming out “um..” and “uh..” or shifty eye patterns that undermine believability or simply distract from otherwise compelling testimony.

Two men sitting in booth talking; image by LinkedIn Sales Navigator, via Unsplash.com.

Visualize – Thinking in pictures elicits great testimony. It is also among the first skills to disappear when nerves are high. Visualizing a crash site or retrieving images stored in the mind is a skill that must be practiced. In the time before testimony, get ready by continually going back in the record retrieve images and stories so that they are fresh and accessible. Hear the voices, smell the room, observe the vivid colors. When the image is fresh and complete in your mind, it is helpful to use the image to respond to questions while testifying or practicing testifying. This will make your testimony credible and impenetrable to cross examination.
Stick to the truth – Lawyers are skilled at getting witnesses to stray just a little from what is within the witness’ knowledge base. It feels like comfortable territory until the witness is out on a limb and vulnerable to cross examination. Don’t go beyond what is actually in your scope of knowledge. 
Don’t be tripped up by leading questions – One way skilled lawyers get witnesses to stray from their knowledge base on cross-examination is by asking questions that suggest an answer. For example, “You felt sorry for the defendant, didn’t you?” Many witnesses might think they have to stick to a yes or no answer in these types of questions even though such an answer doesn’t fully explain their answer. Don’t be afraid to say, “Yes, and may I explain further?”. This way you aren’t avoiding the question (which suggests lack of truthfulness) and gives you an opportunity to suggest there is more. On re-direct, the lawyers calling you as a witness can give you a chance to supplement your earlier response if it is necessary.
Don’t underestimate emotion – Some people withdraw from displays of emotion believing they are unhelpful or problematic, while others might signal inconsistent emotions such as awkward smiles when they are nervous or uncomfortable. Visualizing, relaxing and practicing will help to divulge emotions that may be lurking under the surface and how to deal with them well in advance of testimony. Believing you can deal with unconfronted emotion under the stress of being watched by a jury or the pressure of an aggressive cross-examiner is a recipe for disaster.

Preparation and time are great assets for a witness that can unfold a path to compelling and rich testimony. Ask for the help and guidance you need and take initiative to evolve your communication skills. This time will usually pass quickly and you want to ensure you’ve done your best to support the case.

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