Robbins: Preparing witnesses for trial
“Raise your right hand,” the judge austerely said, and then asked, “Do you swear to tell the truth, the whole truth, and nothing but the truth?”
“I… I…”
But that comes later …
What comes before, before the witness snuggles his or her backside in the witness stand is, as Allen Iverson made once famous, practice.
“Practice?! You mean practice?!! We talking about practice. Not a game. Not a game. Not a game. We talking about practice!”
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Yup.
Like most things, if not exactly making perfect, practice, at least hopefully, chases away the butterflies.
For most folks, a courtroom is an unfamiliar and intimidating place. There’s the judge in his or her black robe, the jurors with their burning sets of eyes on you, the lawyers dolled up as if for a formal dinner dance, perhaps some hangers-on, the press or others watching from the gallery, and the overarching solemnity of the law and what everyone is gathered there for. It ain’t surprising if a lump forms in your throat, your bowels uncomfortably twist, and your sweat glands find renewed purpose — particularly if you are the main attraction.
In psychology, in the treatment of phobias, they call it exposure therapy. Say, as I did as a kid, you have a fear of something. In my case, growing up in suburban Southern California, wolves.
Yeah, I know, I know, there are no wolves In Southern California, and probably haven’t been since. Were there ever wolves in Southern California? But still… I blame my mother who had an unnatural affection for Prokofiev and played Peter and the Wolf incessantly. But I digress …
In exposure therapy, the standard practice is for the therapist to begin by training the patient in relaxation techniques that can calm one’s tattered nerves when under stress. Next, is something known as systematic desensitization which is the process of gradually exposing you to fear-provoking situations from least scary to the most.
Once equipped to take a few deep breaths, the exposures are ramped up, gradually bringing one closer to one’s fears, until at last, voilà , wolves in Southern California no longer seem so scary. “What was I thinkin’?!”
And then, there’s practice. If you shagged some ground balls before, one is rapped at you in the courtroom, you know to stay low, gain ground, work through the ball, funnel the ball to your chest, field, relax and throw. “Yeah, I got this!”
There is a world of difference between “prepping” a witness and “coaching one.” While “coaching” suggests the answer, “prepping,” is, instead, the process of desensitization and practice.
The first thing any good attorney will tell a party who will give testimony in the courtroom is: “Tell the truth.” Next in the hierarchy of getting prepped to testify is, “Listen to the question. You only want to answer what is asked.”
Most of us want to please. When coupled with the natural nervousness of being on the witness stand, too many of us want to babble. We answer questions that weren’t asked. We want to explain ourselves. We hike off on tangents. My advice to witnesses is, “Don’t. Listen to the question, make sure you understand it, and, to the extent you know the answer, answer it. By the way,” I say, “If you don’t know the answer, say so. Don’t suppose or guess. Don’t fill in the blanks; say what you know and nothing more.”
It is also fair, I tell a witness I’m preparing, if you don’t recall to say so. It is fair, too, to ask the attorney hucking fastballs at you to repeat a question or clarify it if you truly don’t understand what’s being asked. I add, too, “But don’t be cute, combative, or sarcastic. If you really and truly don’t understand a question, ask for clarification, but resist the impulse to go to war. Leave it to me, if you’ve left something dangling, to put it in its proper context when I come up to bat.”
Another bit of wisdom that I share not only to answer what is asked, but to answer only what is asked. A game I have long played with upcoming witnesses to make my point is this: I hold up a pen.
“Do you know what this is?”
“It’s a pen,” is the most frequent answer that I get, although the more verbose among us, might embellish with the make and model.
“Wrong answer,” I reply. “The correct answer is ‘yes.’ If the attorney wants to know more, let him or her ask.”
Then there is the practice part. I share with the potential witness what I intend to ask and what might be asked by the other side in cross-examination. Like shrugging on a suit of new clothing, we go through things until the fit is comfortable and the witness has a good idea of what kind of spitballs may be coming.
“Practice?! You mean practice?!! We talking about practice. Not a game. Not a game. Not a game. We talking about practice!”
Yes. Indeed.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Robbins may be reached at 970-926-4461 or at Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale),” “The Stone Minder’s Daughter,” and “Why I Walk so Slow” are currently available at fine booksellers everywhere; coming soon, “He Said They Came From Mars.”
