The Articulate Witness: An Illustrated Guide to Testifying Confidently Under Oath

by Marsha Hunter, Brian K Johnson, Barbara J. Richied (Illustrator)

Overview

Every day in the United States, ordinary people are called to testify in court. Most of them have never been involved in a legal proceeding. But they have probably seen witnesses in high-profile trials on television, being harshly cross examined, looking nervous or anxious—perhaps even humiliated. The thought of testifying can be scary. Being subpoenaed can lead to weeks or months of anxiety until the day arrives when they raise their right hand and swear to tell the truth. This book is for them. Whether testifying at a trial, arbitration, or deposition, this book will help witnesses get ready for the experience. Easy-to-follow, illustrated tips prepare them to be a more compelling witness. The book contains answers to common questions, such as: What can I expect when I testify? How can I be a prepared and trustworthy witness? What is the key to calming my nerves? What questions should I ask the lawyer who called me? How do I keep my emotions in check? Can I channel my nervous energy into something positive? and How can I prevent getting flustered while testifying? Distinguished trial advocacy instructors who have been teaching lawyers to be self-assured communicators for 35 years now employ their techniques to help people who find themselves in the witness chair.

Product Details

ISBN-13:	9780979689529
Publisher:	Crown King Books
Publication date:	01/15/2015
Edition description:	None
Pages:	60
Product dimensions:	5.90(w) x 8.80(h) x 0.50(d)

About the Author

Brian K. Johnson is the president of a consulting firm who teaches persuasion to trial lawyers and public speaking to transactional attorneys. For the past decade, he has trained new assistant U.S. attorneys at the Department of Justice National Advocacy Center. Marsha Hunter is the CEO of a consulting firm who teaches persuasion for trial lawyers and public speaking for corporate attorneys. Her specialty is human factors—the science of human performance in highstakes environments. She is the communication specialist for the National Institute for Trial Advocacy’s collaborative programs with the U.S. Department of Justice's Office of Violence Against Women. They are the award-winning coauthors of The Articulate Advocate: New Techniques of Persuasion for Trial Lawyers and The Articulate Attorney. They both live in Phoenix, Arizona. Barbara J. Richied is a graphic designer and illustrator. She has designed for print, video, and the web. Her client list includes 3M, St. Jude Medical, Best Buy, and Aveda. She lives in Minneapolis, Minnesota.

Read an Excerpt

The Articulate Witness

An Illustrated Guide to Testifying Confidently Under Oath

---

By Brian K. Johnson, Marsha Hunter, Barbara Richied

Crown King Books

Copyright © 2015 Crown King Books
All rights reserved.
ISBN: 978-0-9796895-2-9

---

CHAPTER 1

PART ONE:

Behave Confidently

Control how you are breathing to feel better, think better, and speak better.

As you testify under oath, you can control your feelings, thoughts, and words by controlling your breathing. Study this illustration to understand how the respiratory system works.

Try it:

Take a deep breath. Feel that expansion deep down in your body. Push gently against your belt or waistband. Breathe low and slow.

Sit up straight to breathe easily and efficiently.

It is easier to breathe when you sit up straight. Slouching collapses your upper body against your diaphragm, making it harder to take a belly breath.

When you slouch, your head rides too far forward. Good posture is not a position you hold — "Shoulders back and chest up!" — it is a direction you feel: upward.

Try it:

Imagine a bungee cord is attached to the top of your skull. Feel it pull you upward gently. Don't lift or tuck your chin. Take a deep belly breath.

Use your breathing to control how you are feeling.

Breathing and feeling are connected, like the chicken and the egg. Feeling affects breathing, and breathing affects feeling. Nervous breathing is fast and shallow. Comfortable breathing is slow and deep.

Try it:

Breathe faster and shallower than normal. How does it make you feel? Next, take slower, deeper breaths. Breathe as if you are relaxed and comfortable, and you begin to feel that way.

Breathe deeply to think clearly.

Try it:

Take a deep, slow belly breath and feel the air enter your lungs. Oxygen moves into your bloodstream and up to your brain. Breathe like this as you listen to questions.

Speak confidently and don't trail off at the end of answers.

Speak loudly enough to sound confident. Breathe deeply and have enough air to be audible at the end of the answer.

Try it:

Read aloud the sentences above, getting softer and then louder. Everyone needs to hear your answer. Be loud enough to the last word.

Relax your brow.

As you listen to questions, you may furrow your brow and tense the muscles between your eyebrows. It is easy to fix this by doing the opposite. Lift your eyebrows slightly and those muscles relax.

Try it:

Look in a mirror or set your smartphone to "selfie." Look at your own brow. Feel the difference between tensed and relaxed. When you feel that tension, lift and relax those muscles.

Focus your eyes to focus your brain.

When you focus your eyes, it is easier to concentrate. Look at the attorney asking the questions. Listen with your eyes as well as ears. Don't let your eyes flit around.

Try it:

Feel the difference. Let your eyes flit randomly from floor to ceiling to wall to ceiling to wall. Now focus your eyes on a point across the room. Take a deep, slow breath.

Testifying is both a conversation with the lawyer and a presentation to the fact finder.

In daily conversation, you answer questions to inform the questioner. When you are a witness, an attorney asks you the questions, but you answer to inform the fact finder — a judge, jury, or arbitrator. Before you testify, ask the attorney calling you on direct how often and how long you should look at, or answer directly to, the fact finder. Know your attorney's opinion on what is appropriate.

Try it:

Visit the courtroom beforehand, if you can, to see how it is arranged. Find out who sits where during the trial or arbitration.

Relax your lips when listening.

Don't tense your lips and press them tightly together. This creates a frowning, unfriendly, less believable expression. The solution, however, is not to smile; simply part your lips slightly so the mouth tension vanishes.

Try it:

Look in a mirror or set your smartphone to "selfie." Press your lips tightly together and look at the frowning result. Now part your lips slightly. Breathe easily through both your mouth and your nose.

Don't fidget with your hands while listening to questions.

Nervousness is revealed by hands. Don't wring your hands, clasp them tightly together, or lock your fingers together as if praying. Don't play with a pen, paper, jewelry, clothes, hair, paper clips, or a water glass.

Try it:

Put down this book and rest your hands in your lap, one on each thigh. Now rest them one atop the other in your lap. Do the same thing at a table. Rest them on the table — separated. Rest them loosely one atop the other on the table.

Stay loose.

Natural, unconscious hand gestures are appropriate while testifying. Don't inhibit them. Don't force them, either. If they happen, let them happen.

Try it:

In daily conversation, pay attention to your own natural gestures. How big are they? Do what is natural for you as you testify.

Release your natural gestures as you speak.

Thinking, speaking, and gesturing are connected and work together.

Try it:

Pay attention to gestures in daily conversation. Notice how much they are connected to speaking and thinking. Trusting your natural gestures will help you think and speak.

CHAPTER 2

PART TWO:

Think Confidently

Adrenaline creates a time warp in your brain.

If you feel excited or anxious as you testify, time may seem to slow down, making you acutely aware of the silence between thoughts. You may worry that too many seconds are passing while you are thinking of what to say. Adrenaline, speeding up your heart rate, has created a time warp. More beats feel like more seconds.

Recall a time when you felt a big adrenaline rush after being frightened or startled. People often say, "My whole life flashed in front of me!" or "Everything went into slow motion." That's the time warp.

Try it:

Practice in conversation taking a moment of silence before you speak. Breathe, think, and speak. Don't let the time warp make you rush to talk before you have considered your answer.

Think before you speak.

Before you answer the question, make sure you understand it.

Try it:

Experiment in daily conversation. When someone asks you a question, think and inhale first before you answer. It only takes a second.

Know what to expect at a deposition.

Not all witnesses are deposed. If you are, the deposition will happen before the trial or arbitration.

Who is missing? No fact finder is present — no judge, jury, or arbitrator. What is unusual? Your attorney may object to questions. Despite no ruling on the objection, you must answer anyway.

Try it:

Talk to the lawyer who will defend your deposition so you know what to expect.

During direct examination, expect open-ended questions that use these words.

Sometimes the question is a command.

Try it:

Listen for these words in daily conversation. They get people talking. That's the purpose of these words in direct examination — to get you to tell the story in your own words.

Don't be surprised if listeners are stone-faced.

The old expression "You can't judge a book by its cover" applies to fact finders.

Try it:

Notice how, in daily conversation, listeners are responsive. Heads nod. Eyebrows lift. Expressions change. Don't expect that from the fact finders. They are listening, not interacting.

Expect leading questions during cross examination.

Leading questions are designed to limit your answer to yes or no. They are often a statement turned into a question.

If the statement is ...

You were at that meeting.

It is turned into a leading question with inflection, so it sounds like a question:

You were at that meeting?

Questioning words may be added at the end of the statement:

You were at the meeting, correct?

You were at the meeting, true?

You were at the meeting, right?

A questioning phrase may be added to the beginning of the statement:

Isn't it correct that you were at the meeting?

Isn't it true that you were at the meeting?

Am I right that you were at the meeting?

Be alert. If you hear an open-ended question on cross beginning with who, what, when, where, why, which, or how, you have the right to give a full and complete answer.

Try it:

Parents are experts at leading questions. Have you asked, or been asked, these questions? "You came home late? You didn't call, right? You didn't text, true? Isn't it correct that you promised to be home by midnight?" Be prepared for this on cross.

Have the same demeanor on cross examination as you did during direct.

One of our most experienced, savviest trial-lawyer colleagues shared his top suggestion for witnesses:

"If a witness can maintain the same demeanor on cross as on direct — posture, tone of voice, attitude — he or she is 75% of the way to success as a witness. It is somewhat harder than it sounds, but from 40+ years of watching hundreds of witnesses testify, I think this is the single most important lesson I have learned about cross examination."

Try it:

Practice breathing slowly and consciously, relax your facial muscles to avoid scowling, and maintain your upright posture. Relax your shoulders and neck.

Ask for a question to be repeated when you don't understand.

Don't guess or speculate about a question.

A: I didn't understand the question. or

A: Would you please repeat the question?

Ask for clarification:

A: I don't know exactly what you mean when you say "irresponsible."

If the cross examiner says:

Q: That calls for a simple yes or no answer!

You have every right, when it is true, to respond this way:

A: I cannot answer that question with a simple yes or no.

Although the cross examiner does not want you to explain, you can try this, but don't overuse it or you will appear combative.

A: I don't think I can answer that yes or no. May I explain?

When the cross examiner says "No," he or she looks unfair.

Try it:

Say aloud the answers above several times, so that you are prepared to use them as you testify.

Don't get on the "Yes" train, and if you do, get off.

The cross examiner may ask you a series of rapid-fire questions. The "Yes" train is intended to get you answering quickly so you don't have time to think.

Q: At noon?

A: Yes.

Q: Drank one?

A: Yes

Q: Another?

A: Yes.

Q: Several.

A: Yes.

Q: Got hammered?

A: Yes.

Q: Drove drunk?

A: Yes ... I mean, NO!

Try it:

In daily conversation, intentionally pause to think before you answer a question. Feel what it is like to control your own pace and take time to think.

Don't fall for this trick during cross examination.

Cross examiners want to control the witness. If you give a longer answer, the examiner may try to trick you into stopping by using this gesture.

This gesture often happens after the cross examiner mistakenly asks you an open-ended question starting with who, what, when, where, why, which, or how. Give a full and complete answer. Don't be tricked into stopping by this gesture.

Try it:

To see what happens, try this "Stop" gesture on a good friend or family member. Then explain why you did it. If you fall for it once while testifying, don't fall for it twice.

If you hear an "Objection!" don't answer until the judge rules.

The opposing counsel may object to a question. Do not answer until the judge sustains or overrules the objection. There are two different possibilities:

Try it:

Practice saying aloud the request, "Please repeat the question."

Your brain thinks best in "chunks" of information.

Chunking is a word used to describe how brains process information.

Chunking is why phone numbers look like

212-555-1212 and not 2125551212

Chunking is why Social Security numbers look like

123-45-6789 and not 123456789

Chunking is why it is easier to understand

Chunking is why we give directions like this:

Go two blocks ...

Turn left ...

Drive one mile ...

Turn right at the gate.

Brains remember and retrieve information in chunks. This simple idea can help you as you answer questions.

Your answer ... can be delivered ... one chunk at a time.

Q: What time did you arrive at the meeting?

A: I arrived ... at the meeting ... just before 9:00 a.m.

Try it:

Say aloud the driving directions above. Now say aloud the answer below it. Chunking is how your brain works to remember and speak.

CHAPTER 3

PART THREE:

Speak Confidently

Speak in phrases, not whole sentences, to control the pace.

The chunks of language are phrases. We speak in phrases or chunks when we speak together as citizens saying the Pledge of Allegiance.

I pledge allegiance ... to the flag ...

So that's the rhythm ... I can use ...

of the United States of America.

to control the pace of my answers.

Try it:

Say aloud the first sentence of the Pledge in three distinct phrases. Now say the instruction below it using that same rhythm.

Think in silence — momentarily — between phrases and sentences.

To answer questions truthfully and accurately, you need time to think as you speak. When you speak in phrases, and think in silence between those phrases, you maintain control.

Try it:

Say aloud, a phrase at a time, the sentence above. Once you feel that rhythm, finish this thought in phrases: The last time ... I took a vacation ... I went ...

A descending vocal pattern makes you sound confident.

You have used this pattern unconsciously in conversation many times. It's called "walking down the steps."

Say aloud the last phrase of the Pledge of Allegiance and listen to the sound and direction of your own voice:

You "walked down the steps" to a lower pitch level. Say these examples aloud:

Try it:

Experiment with this descending vocal pattern in your daily conversation. It makes you sound sure of yourself.

Avoid the vocal pattern called "uptalk" that sounds like a question.

There is a common habit of inflection that makes statements sound like questions. Beware of this "uptalk" or "uptick" at the ends of phrases and sentences.

You would never say:

You would say:

Try it:

Say aloud the sentences above and hear your voice rising or falling as the illustrations suggest.

Emphasize important words.

When you emphasize different words, you get a different meaning. Look at how the shifting emphasis on this answer makes it mean different things:

He told me to shred those documents.

He told me to shred those documents.

He told me to shred those documents.

He told me to shred those documents.

He told me to shred those documents.

He told me to shred those documents.

When several words are emphasized, it sounds even more important:

He told me to shred those documents.

Try it:

Read aloud the statements above and emphasize the highlighted word in each one. Notice how the meaning changes. Say the sentence with several words highlighted and hear how it sounds more important.

Emphatic gestures and emphatic words work together.

The main reason to trust your natural gestures is that gestures will make you speak more energetically, confidently, and emphatically.

Try it:

Say aloud the caption above while doing the gesture in the illustration.

Speak loudly enough to be heard by everyone all the time.

If the examiner is speaking in a loud, confident voice, and you are not, you sound uncertain and insecure.

Q: Who did you speak with after the incident?

A: I talked with my supervisor.

Q: Where did that conversation take place?

A: In his office.

Match the volume and sound more certain on direct:

Q: Who did you speak with after the incident?

A: I talked with my supervisor.

Q: Where did that conversation take place?

A: In his office.

Do the same on cross. Don't be too soft:

Q: You spoke with your supervisor after the incident, true?

A: Yes.

Q: You were in his office, correct?

A: Yes.

Match the volume and sound confident:

Q: You spoke with your supervisor after the incident, true?

A: Yes.

Q: You were in his office, correct?

A: Yes.

There are two instances when you do not want to match the lawyer's volume: (1) If a lawyer is speaking too softly, you should continue to speak loudly enough to be heard. (2) If the cross examiner starts to yell at you, do not yell back. Keep your cool and speak softer to control your emotions.

Q: ARE YOU TELLING THIS JURY YOU NEVER READ THAT EMAIL!!?

A: That is correct. I did not.

(Continues...)

---

Excerpted from The Articulate Witness by Brian K. Johnson, Marsha Hunter, Barbara Richied. Copyright © 2015 Crown King Books. Excerpted by permission of Crown King Books.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

---

Table of Contents

Introduction 1

Part 1 Behave Confidently 5

The Importance of Breathing 6

Sit Up Straight 7

Breathe to Feel Better 8

Breathe to Think Clearly 9

Speak Confidently 10

Relax Your Brow 11

Focus Your Eyes 12

Conversation as Presentation 13

Relax Your Lips 14

Don't Fidget 15

Stay Loose 16

Release Natural Gestures 17

Part 2 Think Confidently 19

Time Warp 20

Think Before You Speak 21

Some Witnesses Are Deposed 22

Direct Exam Questions 23

Stone-Faced Listeners 24

Leading Questions 25

Be the Same 26

Ask to Have Questions Repeated 27

The "Yes" Train 28

Don't Fall for This Trick 29

Objection! 30

Use Chunking 31

Part 3 Speak Confidently 33

Speak In Phrases 34

Think in Silence 35

A Confident Vocal Pattern 36

Avoid Uptalk 37

Emphasize Words 38

Emphatic Gestures and Words 39

Speak Loudly Enough 40

Don't Eat Your Own Words 42

Part 4 Put it all together 45

Actions Lead to Confidence 46

Common Advice 47

Acknowledgments 50

About the Authors and Illustrator 51

Editorial Reviews

"An incredibly useful guide, and so easy to follow. This is a gem."  —Mary Pat Dooley, Alameda County Deputy District Attorney


"Having a book like this will bring comfort to the witness. It effectively and concisely informs readers regarding both what to expect in a setting that is foreign to them and how to prepare themselves in order to best present their testimony . . . An outstanding primer for witnesses."   —Hon. Jane M. Beckering, Michigan Court of Appeals

From the Publisher