Monday, March 7, 2016

Getting comfortable with testifying as a witness

Testifying is a unique experience, with different rules than other forms of communication. The best preparation for it is going through a mock trial that simulates the process. I only got comfortable after testifying a dozen times.

What is it like to testify in a deposition or in court? Testifying resembles something scary you’ve seen on television shows like Law and Order - a ‘perp’ being interrogated by detectives doing the good cop/bad cop routine. It is a different situation than either prepared or impromptu public speaking. Instead you tell the story by answering questions posed by attorneys.

During direct examination you are questioned by an attorney who wants you to tell your story. During cross examination you are questioned by other opposing attorneys who instead want to pick holes in your story, and discredit you if possible. After hearing each question you pause, and wait for your attorney to object before you answer.   

Daniel I. Small wrote an article on The ten rules of powerful witness preparation that appeared in the July 2012 issue of Family Advocate magazine. He says that being a witness is NOT a conversation, and notes that:

“In this world the questioner appears to be in control. It’s an illusion, but even the most accomplished witness can fall victim to it. Don’t do it. Remember, the witness has the right and the responsibility to take control.”

His ten rules are:

1]   Take your time.
2]   Remember, you are making a record.
3]   Tell the truth.
4]   Be relentlessly polite.

5]   Don’t answer a question you don’t understand.
6]   If you don’t remember, say so.
7]   Do not guess.
8]   Do not volunteer.
9]   Be careful with documents.
10] Use your counsel. 

There are two types of witnesses. Fact witnesses just testify about what happened. Experts also testify about how it happened. An expert uses his knowledge and experience to help the judge and jury to understand the facts. For example, after a motor vehicle crash there might be broken components like suspension springs or axles. Did one fail progressively and cause the vehicle to crash, or did it break as a result of abnormally large forces from the crash?  

I have been an expert witness in both civil court depositions and trials. Depositions are part of the discovery process that precedes a trial. A deposition might take place in a small meeting room containing just the witness, two attorneys, and a court reporter. I’ve also had a low-budget (and low stress) version done over the telephone where only one attorney was in the room with me. 

Typically the deposition of an expert begins with establishing his qualifications including education, experience, and credentials such as professional engineer registration. (I was registered in Ohio from 1988 to 2015). Then you describe what you did on the case, and the process you used to arrive at your conclusions. You might use some props to explain things. Back in 2009 I blogged about how Props for the courtroom are called demonstrative evidence.

By Murphy’s Law, two decades back, I once even had two depositions on the very same day. In the morning I had a telephone deposition (that originally was scheduled for the previous afternoon). Then I drove 140 miles through a thunderstorm to another afternoon one where attorneys for six parties were present. And then I drove back home.

Most civil cases settle, but some go on to court. Testifying in court is more stressful than deposition. There’s also judge and a jury, in a courtroom with an audience. If the attorney is well prepared, testifying isn’t very stressful. A careful attorney can use more than one expert, and will carefully describe to each the limits of what they will testify on. When the attorney isn’t well prepared a case can become a nightmare. Then multiple experts can contradict and neutralize each other.

In one case the client we worked for switched law firms shortly before trial. The new guys guessed wrong about when they would need the witness preceding me, whose testimony was needed to provide a foundation for what I’d done. That witness had looked at the scene, and taken the samples I’d done lab work on. He had warned them he already was committed to be somewhere else, and couldn’t be two places at once. It didn’t end well.

An image showing Owen D. Young taking an oath came from the Library of Congress.

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