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Tell witnesses to be themselves on the stand

Microphone_no-background_For the many people from all walks of life who find themselves in a witness environment, moving from canned impersonal speeches to direct, meaningful communication is a hard adjustment.

Speeches are easy to hide behind: more familiar and comforting, less revealing.

Speaking directly to a stranger, such as Juror No. 6, is much harder, yet it is essential.

Speeches go far beyond the stereotype of a prepared or memorized address to a large audience. Many of us commonly give prepared and/or canned addresses, short or long, to audiences of one, or many (a doctor advising a patient, for example). Such speeches can be useful. They give us some routine, a patterned way of responding or communicating that is easier and more comfortable than doing something new and personal every time.

Have you ever watched an interview or press conference in which a politician is asked a question and replies by delivering a short speech that succeeds in avoiding the question?

For politicians, that is a sign of success: “Staying on message” is the oft-stated goal.

For a witness, it can be a disaster. Juror No. 6 wants real answers, from real people, and is easily offended if he gets a canned speech that avoids the question.

‘Just a girl’

But stepping away from well-traveled roles is not easy.

Some of you might recall the movie “Notting Hill,” in which Julia Roberts plays a famous movie star and Hugh Grant is a humble shopkeeper. They meet by chance and have a brief, rocky romance, but their roles get in the way. He is scared off by her fame and success. She comes to his shop, asks if they can try again, and he reluctantly declines. Then she says the lines I want all witnesses who are used to playing roles, and making speeches, to consider:

“You know, the whole fame thing isn’t real. Really, I’m just a girl. Standing in front of a boy. Asking him to love her.”

As a witness, you have to talk directly with — not at — Juror No. 6. You need to borrow from the movie to help him understand that: “Really, I’m just a normal person. Sitting in front of normal people.

Asking them to believe him.”

Working to prepare a witness recently, we did a practice testimony that got a little heated. We had told the witness, as we do every witness, that the tougher and more realistic the dry run is, the more helpful it will be. And so it was here.

Every time things got tough, the witness would retreat to a familiar canned speech to try to explain. Each time he did that, I recited the line back to him: “Just a girl. Standing in front of a boy!” Slowly, it began to have an effect.

He began to answer from his heart, not just his head, to talk about who he really was, what he really thought.

I often hear lawyers tell witnesses to “talk to the jury.” I have to disagree. “The jury” is a blob, a crowd, and a lawyer saying talk to a crowd is often heard by the witness as telling him to give a speech or many speeches. Most people aren’t comfortable talking to a crowd, and those who are used to it generally are used to giving speeches.

Telling a witness to talk to Juror No. 6 is telling him to speak directly to an individual; ultimately, 12 individuals. To do that effectively, he has to be all the things that a speech is not: simple, slow, clear and real.

That is the rhythm of being a witness: Question, pause, answer, stop.

Tell your witness to:

  • Make sure the question is clear and simple. A bad question too often leads to a bad answer.
  • Take the time to think about it. Juror No. 6 understands that this is important.
  • Give a direct, meaningful answer that Juror No. 6 will understand and appreciate.
  • Stop. This is not a political debate in which you only have a few minutes to cram in as much speechmaking as possible. Let your answer settle in and wait for the next question.

Tell your witness: Get off your stage and talk with people, as a real person. It can be hard to do, but it is necessary.

You’re just a normal person, talking to another normal person, asking him to listen and believe.

Daniel Small is a partner in the Boston and Miami offices of Holland & Knight. A former federal prosecutor, he is the author of the American Bar Association’s “Preparing Witnesses” (4th Edition, 2014).

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