So, you have to testify in front of the U.S. Congress? Just remember these sage words of wisdom from Goldman Sachs’ attorney K. Lee Blaylock II (O’Melveny & Meyers):
“Long, thoughtful pauses followed by rambling non-responsive answers can easily devour half of a (congressional) member’s allotted questioning time.”
The BLT (Blog of Legal Times) has a great article on Mr. Blaylock’s advice. First and foremost: Always remember that congressional hearings are not about getting to the truth.
What!? Witnesses should be “rambling?” We have no intention of finding the truth? I suddenly feel like I am sitting at a tea party in Wonderland and celebrating “A Very Merry Un-Birthday” with the Mad Hatter and March Hare. Apparently, the end of the rabbit hole comes out somewhere near the Potomac.
While this advice may work to prevent congressional grandstanding, it is not the way to go in the courtroom. Of all the mistakes that can occur in the process of trial preparation, the overestimation of witnesses’ abilities is likely the most common.
So, in the spirit of helping witnesses and attorneys everywhere (even in Wonderland), I have compiled a few common mistaken assumptions and their pitfalls.
(NOTE: Watching the YouTube clips will make this post much more entertaining.)
“My witness knows their business.” Testifying is much like public speaking (which Gallup found as the #2 fear amongst Americans, just behind “fear of snakes”). Testimony about work is not the same as talking to someone at a bar about what one does for a living. For even the most rock-solid executives, being on the stand or in a deposition can be a nerve racking experience. Remember, witnesses have little control over the Q & A process. With loss of control, comes fear. With fear, comes anger and defensiveness. As we all know, an angry and defensive person looks like they have something to hide.
Take a look at these depositions of businessmen who lost control…
“My witness is a successful expert.” Even being an experienced expert witness does not equate to being a great expert for this case. Without the proper preparation, experts can easily be caught off guard and look like a deer in headlights. Check out this successful accident reconstruction “expert” who starts confidently but is apparently in desperate need of remedial math. (It gets good about three minutes into the clip, or is that 180 seconds?)
“My witness is really smart.” Some believe that intelligence correlates with performance on the witness stand. If this were the case, then Hollywood would be filled with Mensa members. Oftentimes, those who are extremely intelligent have a diminished ability to handle the stress of being aggressively questioned without fighting back. You might recognize this guy…
Those with high intelligence may also be used to being the manipulators, not the manipulated. This loss of power can bring out the worst and cause them to try and take control of the questioning process, which is never a good idea.
(In the next clip, note the phrase: “I think your answers are unresponsive and rambling.” This sounds like Wonderland testimony to me.)
While it’s easy to blame the witness, often the attorney shares equal fault. Witnesses are walking into an unfamiliar world and need careful guidance and training. They need to be taught how to stay calm. They need things carefully explained to them. They need to know why it is unhelpful to aggressively fight or try to overtly battle opposing counsel. They need to be protected with breaks and provided with safe harbors when cross-examinations get heated. Most importantly, they need practice.
The best witness preparation is practice in an unfamiliar space with an unfamiliar attorney asking unfamiliar adverse examination questions. Just think if Alice had practice before conversing with the double-talking Cheshire Cat? It is only through practice that the unfamiliar becomes familiar and witnesses can keep calm and focused.
A calm and focused witness is always the primary goal. Sill, keep in mind that if the attorney loses composure, the witness doesn’t have a chance…
Blogger: Matt McCusker
