Trial Testimony Article
Wednesday, November 23, 2011
Posted by: CALI
by Michael Julian, CPI PPS
Have you ever felt the weight of the world on your shoulders while sitting on the witness stand, after swearing to tell, "the truth, the whole truth and nothing but the truth so help you God”, at the front of the room in a hot, packed courthouse, sweating profusely in your suit partially strangled by the top button of your dress shirt because you haven’t bothered to buy a new one since putting on 15 lbs, and being eyeballed by 12 people you don’t know and mad-dogged by an attorney whose sole mission in life is to make you look like a bumbling idiot? It isn’t pretty but it is avoidable.
I got the idea for this article the other day while watching one of my subcontract investigators testify on a portion of surveillance video that he obtained while working an insurance investigation for me.
We had been working the case for two years and had gotten about 18 hours of videotape, documenting just how uninjured this claimant/plaintiff really was. One of the other investigators that had also worked the case, a novice with very little experience, was also present and was about to testify in his very first trial. I told the novice investigator to just watch the testimony of the other investigator, who had years of experience and testified in dozens of trials prior to this day (though none for me before this time), to get a feel for how he should project himself and answer when cross-examined.
To my horror, as the experienced investigator began to answer questions asked by Plaintiff’s council, he started to exhibit signs of defensiveness and appeared evasive to some portions of the questioning. Having testified on numerous occasions and sitting through the testimony of dozens of witnesses myself, I knew if this guy didn’t change his overall posture soon it wouldn’t matter whether he was telling the truth or not, he would hurt our case rather than strengthen it. My eyes shifted immediately to the jury who was watching intently as though it was a Discovery Channel documentary on the last moments of life of a fly as it struggles to escape the web of a spider closing in on its pray. The Plaintiff’s attorney, though not extraordinarily cunning, was doing a more than adequate job of making my very honest and forthright investigator appear to be a paid assassin whose only job was to say whatever was necessary to crush the integrity and good name of his terribly injured and infinitely disabled client. Needless to say, no matter how good the video was I was becoming very concerned about the jury’s final judgment of our evidence and my investigator’s character.
Just as the final question to the experienced investigator was answered and he was excused from the stand (and my blood pressure started returning to a less than critical level) I realized that the next witness up was my young, inexperienced investigator who had never weathered the pressure of a Plaintiff Attorney on the war path (who had just watched thousands of dollars evaporate from his payday if he couldn’t destroy the credibility of the investigator that obtained this devastating videotape). With the little breath I could muster from my lungs, which were paralyzed from the idea that thousands of dollars would evaporate from MY future paychecks for hiring such incompetent investigators, I whispered to my novice sitting beside me, "Whatever you do, don’t do it like that!”
To my utter astonishment, and what assuredly saved me from hundreds of new gray hairs (or the loss of hundreds of existing hairs), my never-set-foot-inside-a-court-room investigator, gave one of the best and most sincere and compelling witness testimonies I had ever seen. As for the first investigator, well, he never worked for my company again.
It was then that I realized some of the most fundamental aspects of our profession are worthy of review. Trial testimony is one such subject.
It is important to remember that a trial is a little more than an adult-sized board game and the facts and evidence often times play a secondary role to the skill of the players (See O.J. Simpson trial, 1995). It is essential that a witness have the skill to project him or herself to a jury in an appropriate manner, i.e. adequately and effectively play their role in this big game. You want to be liked by the jury. You want them to connect with you like a friend or family member. Bottom line, you want them to believe you!
Always dress professionally. That doesn’t always mean a suit, but it should never be less than a dress shirt, slacks and tie. A sport coat is advisable. Make sure you shirt is pressed and you can safely button the top button without cutting off the circulation to your brain. You’re going to need that to answer questions and passing out will only detract from the stellar testimony you are about to give. Make sure whatever you are wearing fits you. Remember, you are a professional. If you’re looking a little shaggy, trial time is a great time to get your ears lowered (that’s what my Grand Dad called a haircut in case that wasn’t clear). Your face should be clean shaven, little or no facial hair or trimmed very neatly. Little or no jewelry, but always a wedding ring if you are married (projects stability). Ladies should not try to gain the favor of male jury members by wearing short skirts or low cut blouses. You never know what a jury member’s beliefs are so that could backfire on you.
You, as an investigator, are a collector and reporter of facts, nothing more. You are not a designated expert (probably) so your opinion has no place in testimony. Your answers should be short and to the point. If it is a Yes or No question, give a Yes or No answer. Do not voluntarily expound on your answers. If the questioning attorney wants more information, he/she will ask for it. You don’t want to give additional information that can be twisted or used against your creditability by opposing council. If your attorney client is questioning you, let him guide you down the path that he/she, as an experienced litigator, has chosen. During cross-examination by the opposing attorney, always wait a split second before answering to allow your client council to object if necessary.
Keep your voice steady and even. Deliver your answers calmly and with little inflection in your voice. Be especially aware of your tone/pitch at the end of a sentence. A rise in your voice can give the impression of doubt of defensiveness. As long as you are telling the truth, you have no reason to be unsure or defensive.
I can’t stress enough how important it is for you to project yourself as indifferent to the outcome of the trial. The opposing attorney will most likely ask you if you are being paid to testify. He/she will try and make it look like you have a financial interest in the verdict. If you did your job competently, your investigation will speak for itself and will be the reason for your continuing income. If your client’s case bombs, they probably had a bad case to begin with or the client council blew it. The text book answer to whether you are being paid for your testimony is, "I am being reimbursed for my time”.
Sit up straight. Don’t fidget or swivel back and forth in your seat. Avoid tapping your foot so hard that it shakes your body. Even though inside you may feel like jumping out of your skin, you are only there to tell the truth so there is no reason for you to be nervous.
Maintain eye contact with whoever is questioning you for short answers. If you are asked to explain your answer, turn slightly toward the jury and address them, again making eye contact with each of them during your explanation. Looking down is a sign of evasiveness and will ultimately hurt your credibility.
Dig way down deep into your childhood memories of what your parents taught you about manners. Address everyone as Sir or Ma’am. Don’t refer to your subject as the man or lady, but as a gentleman or woman. Remember, you are not supposed to have personal interest in the outcome of the trial, so be friendly and courteous to everyone- no matter how they treat you. You can quickly turn a jury against an overly aggressive, rude and intimidating examiner by replying with unaffected grace. Always address the judge as Your Honor and say good morning or good afternoon when greeted by the judge or council.
What Not to Do
Don’t lose your temper under any circumstances!
Don’t get smart with the attorneys or the judge. For all intents and purposes, you are a simple servant of the court. You don’t have an opinion and you surely don’t carry enough weight to turn wise guy without looking bad.
Don’t let opposing council shake you by inferring that you are dishonest or untruthful. It’s his/her job.
Don’t appear at court unprepared. Study your notes, reports and/or videotape the night before to make sure that you have all your facts straight. If possible, confer with your client council to make sure you are both on the same page.
Don’t take your original case file into court with you unless your client requests it. Compile a brief outline of facts to remind you of pertinent times, dates and events to use on the stand. If you show up with your whole file, it can now be entered into evidence and scrutinized to death.
Don’t try to outsmart the attorneys or pre-determine the questioning to adjust your answers accordingly. Wait for the question and answer it honestly.
The best way to become proficient at trial testimony is practice. Ask an attorney client if he/she would mind working with you or your employees in some mock trial testimony. Spend some time answering questions, practicing what you have learned and then ask for feedback, positive and negative. If you really want to get it right, videotape yourself during the exercise. Then you can see what a jury would see and really fine tune your projection skills.
Whether you are a seasoned veteran who has testified in hundreds of trials as an old timer PI or beat cop, or a new employee of a large firm, you should play every hand as though your ultimate destination will be in front of a jury of your peers. You have got to be ready to tell your story with the sincerity of a saint.
Michael Julian is the President/CEO of National Business Investigations, Inc. As a 2nd generation PI with nearly three decades in the private investigative and security industries, Mr. Julian currently serves as Vice President of the California Association of Licensed Investigators and lobbies California legislators on behalf of the private investigation industry. He can be reached at email@example.com
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