Giving Effective Trial Testimony

By Michael Julian, CPI PPS CSP

Have you ever sat on the witness stand after swearing to “tell the truth, the whole truth and nothing but the truth so help you God,” and felt the weight of the world on your shoulders? The courtroom is packed and hot. You are sweating profusely in your suit, partially strangled by the waistband of your pants that you struggled to button that morning after gaining 15 pounds. Twelve people you don’t know are eyeballing you, and an attorney whose sole mission in life is to make you look like a bumbling idiot is mad-dogging you. It isn’t pretty. Thankfully, however, it is avoidable. In this article, I will suggest a few ways to avoid this grisly experience.

I got the idea for this article the other day while sitting in a courtroom watching one of my subcontract investigators testify on a portion of surveillance video that they obtained. We had been working the case for two years, and there were about 18 hours of videotape documenting just how uninjured this plaintiff really was. One of the investigators was a novice with very little experience, and he was about to testify in his very first trial. I advised the novice investigator to watch the testimony of the other investigator who was testifying before him, as he had years of experience and had testified in dozens of trials prior to this day. I told him that he would get a feel for how he should project himself and answer, particularly when cross-examined.

To my horror, as the experienced investigator began to answer questions on cross-examination, he started to exhibit signs of defensiveness and appeared evasive during portions of the questioning. Having testified on numerous occasions and listened to the testimony of dozens of witnesses, I knew that it didn’t matter if the investigator was telling the truth or not. He would hurt the case, rather than strengthen it, if he didn’t change his overall posture. My eyes shifted immediately to the jury who was watching intently as though it was a Discovery Channel documentary on the last moments of a fly’s life as it struggles to escape the web of a spider closing in on its prey. 

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 the 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 the defendant’s evidence and of the investigator’s character.

Just as the experienced investigator answered the final question and was excused from the stand, (and my blood pressure started returning to a less than critical level) I was worried about the next witness. He was inexperienced and had never weathered the pressure of a plaintiff’s attorney on the war path (who would see 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 the 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), the never-before-set-foot-inside-a-courtroom investigator gave one of the 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.

At the outset, 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 murder trial from 1995.) In court, it is essential that witnesses have the skill to project themselves to a jury in an appropriate manner.  That is, they must 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!After 25+ years as an investigator and sitting through and observing hundreds of hours of testimony, both good and bad, I’ve developed a pretty good opinion of what a jury will react to in a positive way.  I have also learned what will turn that same jury into an angrylynch mob.  Here are a few tips gained from my experience.

 Appearance

Always dress professionally. That doesn’t always mean wearing a suit, but it should never be less than a dress shirt, slacks and tie for men and a skirt or pants with a jacket for women. Make sure your shirt is pressed and, for men, that 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 not facilitate 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, be sure to get the haircut before you appear in court or, as my granddad used to say, “It’s a great time to get your ears lowered.” For men, be sure that your face is clean shaven, with little or no facial hair or hair that is neatly trimmed.  Women should have only subtle makeup, and avoid short skirts, very high heels, and low-cut blouses.  Little or no jewelry is always best, except wedding rings should be worn if the witness is married as it projects stability.

 Responses

You, as an investigator, are a collector and reporter of facts, nothing more. You are probably also not a designated expert 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 or she will ask for it. You don’t want to give additional information that can be misconstrued or used to impeach your credibility by the cross-examining attorney. On direct, let the attorney who questions you guide you down the path that he or she, as an experienced litigator, has chosen. During cross-examination, always wait a split second before answering to allow the other attorney (who retained you) the chance to object if necessary.

 Voice Inflection

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 or defensiveness. As long as you are telling the truth, you have no reason to be unsure or defensive.

 Attitude

I can’t stress enough how important it is for you to project yourself as indifferent to the outcome of the trial. The cross-examining attorney will most likely ask you if you are being paid to testify. That attorney will try to make it appear that 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 recurring business (and more income). If your client’s case bombs, they probably had a bad case to begin with or the client counsel blew it.  The text book answer to whether you are being paid for your testimony is, “I am being reimbursed for my time.”

 Demeanor

Sit up straight; don’t slouch. 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, relax.  You are only there to tell the truth so there is no reason for you to be nervous.

 Eye Contact

For short answers, maintain eye contact with whoever is questioning you.  If you are asked to explain your answer, however, turn slightly toward the jury and address them, making eye contact with each of them during your explanation.  Looking down is a sign of evasiveness and will ultimately hurt your credibility.

 Manners

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, rather, as a “gentleman” or “woman.”Also, keep in mind that you are not supposed to have a personal interest in the outcome of the trial, so be friendly and courteous to everyone regardless of how they treat you. You can quickly turn a jury against an overly aggressive, rude and intimidating examining attorney by replying with unaffected grace. Lastly, always address the judge as “Your Honor” and say “good morning” or “good afternoon” when greeted by the judge or counsel.

 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 (or gal) without looking bad.

Don’t let opposing counsel shake you by inferring that you are dishonest or untruthful.  It’s part of his or her job.

Don’t come to court unprepared.  Study your notes, reports and/or videotape sufficiently in advance, and review them again the night before you testify to make sure that you have all your facts straight. I recommend that you confer with the attorney who retained you to make sure you are both on the same page and you know what to expect.

Don’t take your original case file into court unless your client requests it. Instead, compile a brief outline of facts to remind you of pertinent times, dates and events to use on the stand if needed. If you show up with your file, it could well be entered into evidence and scrutinized endlessly.

Don’t try to outsmart the attorneys or anticipate the questioning so that you can adjust your answers accordingly.  Wait for the question, and answer it honestly.

Practice

The best way to become proficient at trial testimony is to practice. Ask the attorney you’re working with to conduct some mock trial testimony. Spend some time answering questions, practicing what you have learned, and asking for feedback, positive and negative. If you really want to get it right, have your “testimony” videotaped during the exercise. That way 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 or a newcomer, you should play every hand as though your ultimate destination will be in front of a jury of your peers. That means being prepared to be a star witness. You’ve got to be ready to tell your story convincingly, with the patience and sincerity of a saint.

Michael Julian is the President/CEO of National Business Investigations, Inc. and MPS Security. As a 2nd generation PI and Security Professional with three decades in the private investigative and security industries, Mr. Julian served as President of the California Association of Licensed Investigators, lobbies California legislators on behalf of the private investigation industry and teaches classes on Starting and Building a PI Business, Surveillance, Personal Locates, Executive Protection, and Business and Ethics in both Investigations and Security industries nationally. He can be reached at [email protected] and please visit www.Investigations-NBI.com or www.Security-MPS.com