Gillian Drake
For the Defense
Witnesses on Trial

You are in court. It's time for your client to take the stand. You have spent hours preparing him. The Plaintiff's lawyer asks the first tough question on cross-examination and your client mumbles an incoherent response. By the fourth question, your client is dressing the lawyer down. And soon, he is jabbering like a Federal Express commercial, admitting liability in a torrent. Case lost.

You look back and figure that either your client blew it or you didn't spend enough time preparing him.

Both answers are wrong. You probably improved your client's testimony a lot since you first met him by having several question and answer sessions and by doing a mock cross-examination session. But these steps are just the first ones necessary to prepare a reliably successful witness.

The key to successful testimony for any client or witness is performance, not recitation.

When testifying, your client obviously needs to remember the issues and facts, confine his answers and listen to the questions. However, following these guidelines is not enough to win a case. Besides, when one is nervous, embarrassed or afraid, remembering and listening are very hard to do. What is most important is that your client appears the way he or she really is: committed, caring and competent. Otherwise, the jury will not like, trust or believe your client. This is what performance is all about.

When lawyers are uncertain of their own performance in the courtroom, they go to trial practice seminars. But when lawyers are uncertain about the performance of their witnesses or clients, they feel they have only two choices: either seek advice from psychologists who can assess personality but are not equipped to change your client's aggravating behavior on short order, or rely on their own experience and techniques. Unfortunately, those techniques have been handed down from one legal generation to the next with little modification or innovation.

Today, lawyers must take extra steps to avoid being "out-witnessed" by plaintiffs' attorneys. I work regularly with defendants to assist in preparing them for depositions, arbitration hearings and trials. The techniques I use to take these clients the extra step are borrowed from the theater, where the performer's goal is a seamless, dynamic performance that has a genuine ring of truth. Theater professionals are skilled at pulling performance and personality out of individuals through carefully controlled rehearsal processes.

Often, a trial is won or lost on the defendant's credibility. After several intensive coaching sessions, we are able to rebuild a client's confidence, punctuate key points of his testimony and bolster the perceived weaknesses.

PERFORMANCE ISSUES

Going on stage unprepared is known as "The Actor's Nightmare." Actors cannot remember their lines without weeks of rehearsals, where they focus on both the substantive and physical aspects of their performance. How can we expect anything more from witnesses who are totally untrained in the art of performance?

Actors do not simply "go over" their lines and review their stage movement before opening night. They study their text, examining its overall social and emotional issues, the dramatic arc of the play, and the playwright's purpose for writing the play. They delve into their roles: what the character is doing or feeling moment by moment, what is at stake, their "raison d'etre," their social standing, and how the character fits into the whole. In order to put the correct emphasis into their lines, the actor must know what the playwright wants to say through the character.

At least half of the rehearsal is taken up with the physical side of acting: voice, singing, movement, dance, relaxation, concentration and energy. This preparation does not just help actors become graceful and audible on stage, but enables them to focus and perform (i.e. act) under the confusing, terrifying and distracting conditions of performing.

No matter now much you train and rehearse, the moment the spot light turns on you, you get nervous. Therefore, actors spend an enormous amount of time learning how to use nervousness to their advantage to bring focus and energy to their performance. And, they learn to eliminate the nervousness they cannot use so that this potentially devastating emotion will not interfere with their ability to relax, be themselves, remember their lines, block and be emotionally truthful.

The same problems and expectations that an actor experiences effect the witness-actor, only more so. Being on trial is even more stressful than performing on stage. The moment when you take the stand and all eyes are on you is frightening. All sorts of conflicting thoughts and feelings course through your mind: "Don't make a fool of yourself...What if I say the wrong thing?

...They are looking at me as if I am a criminal...I won't give them a thing...I can outsmart that lawyer...What did my lawyer tell me was the most important thing to remember...What was it? Oh, I should have written it down...What did she say to me? Which hand do you want me to raise?"

THE UNIQUE CONCERNS OF DEFENDANTS

For the witness who is also the defendant, the pressure is even worse than for other witnesses. Nothing can match the exquisite anguish of being your own witness at trial. For defendants, testifying is particularly wrenching.

When an individual gets sued personally -- accused of incompetency, bad judgment, not caring enough -- they feel betrayed. They end up feeling more defensive than the business person whose company is being sued. There is some comfort in being able to blame a faulty product or a badly drafted contract. But for any kind of witness on the stand, defensiveness looks like a cover up, and unless you rehearse that impression away, it reads like guilt.

Everyone who has ever been sued has felt at least a tiny bit of self-doubt about whether the allegations are valid. Because defendants are usually accused of doing something that "wronged" another person. This self-doubt underscores an irrational misconception that they are being accused of a crime. Unless they can shake off this notion through coaching, defendants' self-doubt usually looks like fear in their eyes, and fear makes most juries and observers think the defendant is lying.

Another concern to me as a coach for defense cases is the defendant's embarrassment and dread of facing the community in the courtroom. Defendants fear the case will go into the press and that everyone including their clients, will see it and suspect them of incompetency. There is an expression in the theater, "Saying makes it so." Most clients fear that reading it in the newspaper "makes it so" to all the past, present and future subscribers to the local paper. It is a terrible experience to feel that you have just slipped from being a respected member of the community to a dog's body, especially if the plaintiff is litigious, ungrateful, wanting money or misadvised. This embarrassment usually reads like self-protection and the jury thinks "Why should that client be so self-protective if he didn't do anything wrong?"

My job is to eradicate the defensive, hurt, fearful and embarrassed attitude defendants tend to have when they testify in their depositions, arbitration hearings or trials. By coaching the performance at the same time we address the substantive issues, we help the defendants relax, be themselves, remember what is most important, stay narrowly focused and listen to the question.

Some basic coaching techniques help lawyers maximize preparation of their witnesses for performing in the courtroom. Below are some of the techniques I use to prepare witnesses for testifying.

COACHING PERFORMANCE

1. Make witnesses the heroes of their own stories. Every lawyer knows to caution their witnesses from answering defensively. For instance, if the question is "How did you fail to foresee this problem?", the answer is not "No one else foresaw it either!", but perhaps, "I didn't fail, I analyzed the situation based on everything that I could empirically define and prove." Eliminating defensiveness is the first step to becoming the protagonist, Then, you want to get the defendant to be able to tell their whole "story" from their own point of view, which is a very difficult task. When you ask a defendant to give her own interpretation of the case, listen for how many times she will finish a point by directly addressing an element of the plaintiff's complaint. This tendency to digress is dangerous in terms of performance -- it can only come off as defensive and suggest that the client has forgotten what happened from her own point of view. Remind your client to always answer the question "How did you help dealing with this situation?" and not "Why did this situation go so badly?"

Be relentless with this technique. Ask the defendant to relate the series of events as if she had a camera over her shoulder recording her every move. This exercise helps remind the client of her original high standard of work product and make the story new again, eliminating the now jaded point of view. Most importantly, you help structure the story so that the client can once again see that she was the heroine of her story.

Help your clients become their own best advocates. Teach your clients how to sell themselves through their background and training so that the answer to the question "Where are you from?" is not "I was born in Mexico, but I trained in the U.S." Rather, the answer might be, "I am from Baltimore and trained at the top financial service company in Boston. I was born in Mexico City."

However, it is not just through their text, but also through their delivery, that witnesses become their own best advocates. Encourage them to be enthusiastic and proud, as enthusiastic as they had been when answering your questions casually before trial. Get them to talk about the early experiences that led to their profession.

Help your clients write their own answers. This is painstaking work. In order to get your client to remember the important issues, repeat the case's salient theories, and embrace the oppositions' points in a positive way, you must have your clients "write their own answers". Formulate the toughest questions, let the client answer, suggest other ways of phrasing, and then let the client rephrase, and so forth. Do this until he owns the answer. Then ask him to write the answer down. You will find that if you take the requisite time, the client will develop a dependable answer.

He need not memorize answers, per se -- that can be dangerous. But the act of developing answers and writing them down commits the client to testifying in a natural way. Most importantly, it will also help him hear the question no matter how it is phrased.

Unspoken issues. Every client is nervous and fearful. However, each is afraid of something different. Client's rarely admit to these inner fears. But they are real and need to be addressed. One may fear the press most. Another may fear some unexamined self-doubt about competency.

These issues should not be avoided or denied. Denial is a form of tension which takes energy away from the truth. Because denial looks like a lie to observers, it gets in the way of your client being believed. And denial takes energy away from what really needs to be done -- relating your client's story to the jury.

The client must feel believed. In preparing for testimony, clients need to be comfortable and reassured at every moment. Unfortunately, they often feel that their own lawyer does not quite believe in them; it is essential for the client to feel believed. The client feels that if the lawyer does not believe him, then no one will.

When you prepare your client for cross-examination, bring in another lawyer from your office to ask the hard questions. Never let the client see you in a negative, confrontational, or disbelieving role. You and your whole staff must reassure your client directly in any possible way. And if self-confidence is a main stumbling block to credibility with one of your clients, than you need to hire someone to bolster that client's performance.

SUMMARY

There are several was to prepare clients for their "theater performance" in the courtroom. Teach them to take the focus off themselves, and to eliminate the defensiveness, fear and embarrassment from their eyes. Address the jury issues as well as the legal issues. Adjusting appearance through posture, eye contact, relaxation, facial demeanor, dress and breathing is another useful technique. Conduct a mock trial, practicing different courtroom scenarios. The key is to address those fears and anxieties that prevent the client from getting his or her message across in the most direct, honest, and vivid way. The end result of this process is clients who are ready to perform credibly, reliably, and caringly, and not just recite the facts of their case.