Firm Blog

The Makings Of A Great Witness

Posted by: Victoria Santoro

Remember that day, probably sometime in elementary school, when you had your first experience with public speaking?  Most of you absolutely hated this experience. What does this uncomfortable memory have to do with witnesses? Well, think about how your witnesses feel when they have to come in and testify in front of bunches of lawyers. It is nerve-wracking. To make matters worse, many people wrongly assume that the most comfortable public speakers translate into the most clever, composed witnesses. This is rarely true. Hollywood (of course) portrays witnesses as sarcastic and conniving. With all of this together, you end up with witnesses who feel as if they must “perform” during their testimony. If you have a witness being deposed, or who is called in to testify at a trial, I’m telling you that you don’t need your witness to be a great orator, nor do they need to feel comfortable speaking to a crowd. In reality, there are only a few key traits you should look for, and cultivate, in order to have a competent witness.

Confident
It goes without saying, I hope, that your witness needs to be confident enough to answer a question directly while all eyes are on them.  Some witnesses are so nervous that they are unable to make or maintain eye contact with the lawyers or the judge.  It can have the unfortunate result of making this person appear either unsure or untruthful.  Other witnesses become so nervous that they are unable to articulate, in clear sentences, the answers to your questions. This is only exacerbated during a cross-examination.

A good lawyer will spend the time doing mock examinations, both direct and cross, so that a witness will know exactly what to expect. Make sure during interviews or other preparatory sessions, that your witness is comfortable enough to maintain composure under pressure and has the ability to articulate clear, responsive answers.

Focused
When there is a lot to say, sometimes one question can prompt a five minute speech encompassing many different facets of one case.  Not only is this likely not allowed, but it can end up sounding disorganized, be difficult to follow and is ultimately not responsive to the question. When a question is asked, it primes the lawyers, the judge, or the jury, for a specific answer which they are waiting to hear.

The expectations of the witness are different on direct and cross, and it is up to the lawyer to explain these differences to a witness.  Direct examination often calls for descriptions of certain events, or requires recollections of a certain time period. It is important your witness answers the question directly, is able to share all relevant information and is then able to finish their answer without rambling or straying off point.  On cross examination, the questions are much more pointed and often only require a one-word answer.  Which brings me to my final point.

Listening Skills
Make sure your witness is paying close attention to the form and content of all questions. During cross-examination, some lawyers are adept at lulling a witness into a sense of security by asking a series of similar sounding questions. And then, they toss in a wild card, and the witness provides the same rote answer and you end up with a testimonial issue that needs to be repaired. The best witnesses listen very closely to what is being asked of them, and are therefore more able to provide the most responsive answer.

Being a great witness is quite simple. Everyone in the courtroom, or conference room, is hoping they’ll be honest, clear and direct. From the witness’s perspective, the whole process is overwhelming, but with the appropriate preparation, and focus on these key goals, you’ll be able to reassure your witness that providing testimony will be easy. It is important to underscore with your witness that they are not providing a “performance.” In most cases, any type of performance will backfire. Being confident and composed, providing clear answers and paying close attention will ensure your witness will have a positive experience providing testimony.

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