Testifying Under Oath - It's Not a Conversation
- Jeff Dougherty, M.S.
- Oct 9
- 5 min read
Updated: Oct 10
Before any witness can testify to the best of their capabilities, they need an overarching framework to guide their thinking as they engage with their attorneys and opposing counsel. This holds true for both deposition and trial testimony. What is the overarching framework you ask? It's this: "Testimony is Not a Conversation." This is the starting point under which all subsequent training and teaching follows. The objective of helping witnesses think this way is mostly geared toward dealing with questioning from opposing counsel, but the mindset also promotes effectiveness under direct-exam.
This advice might sound counterintuitive at first (to both witnesses and attorneys), in fact, I've heard attorneys tell their witnesses that their testimony will be a conversation. However, it will soon be clear why "Testimony is Not a Conversation" is the correct starting point. While there are many reasons this is true, I'm going to highlight three important ones:
Objectives of Questioner. When people speak with one another outside of litigation, it's usually for a handful of reasons, e.g., arriving at a mutual understanding, discussing shared interests (sports for example), getting to know one another, simple banter, etc. In these everyday scenarios, when one or the other person asks a question, the intent is not usually nefarious. In litigation it's different. The opposing lawyer has pre-set objectives behind each question, and those are not the type witnesses are accustomed to in their normal everyday lives (mutual understanding for example). Cross-examination questions are designed to promote a narrative that suits the interests of the attorney's client, which by definition does not suit the needs of the witness.
The following are a few examples of the goals of a cross-examiner that illustrate the point:
Ask questions in such a way the witness agrees with an interpretation of facts that is likely detrimental to the witness's best interests.
Ask questions in such a way that the witness goes into fight/flight/freeze mode.
Ask questions intentionally mischaracterizing facts/evidence, in an attempt to promote a self-serving narrative.
Ask questions designed to trap witnesses with their own words and force an "admission" or a contradiction in testimony.
If a witness assumes he is having a conversation with opposing counsel, and doesn't understand the true objective behind the questioning, the testimony will suffer, sometimes catastrophically, and sometimes the witness won't even recognize what happened.
Witnesses Don't Ask Questions. When people speak with one another outside of litigation, there's usually a back and forth engagement, that goes something like this: one person says something, the other person comments (in agreement or disagreement) or asks a question out of interest, clarification, or just to keep the conversation going. Each participant engages in this back and forth process. In litigation it's different. Only one party asks questions, and it's the attorney. But there's one exception. The witness will at times ask one specific question: "Can you please repeat that question?...I'm not sure I understood it," Aside from that, the witness's only role is to answer questions. It's more of an interrogation than a conversation. Almost no one is accustomed to this type of communication. Imagine communicating like this professionally, socially, or in any other communication environment. It's not normal, it's ineffective and would be detrimental to most relationships. No one does it and thus it takes time to learn how to do it effectively. When it comes to direct-exam, this point is also important for witnesses to remember. The witness is there to answer his lawyer's questions. The lawyer knows what testimony needs to be elicited and will do so in the manner she sees fit. The witness needs to trust that his lawyer knows what to ask and how to ask it such that legal requirements are met, the record is clear, the jury learns what they need to learn and when they need to learn it. This is the lawyer's role. If witnesses treat the interaction like a conversation, a few unproductive things happen, for example:
They try too hard.
Their answers are too lengthy (and they lose the jury).
They try to force the narrative (which looks too much like advocacy).
The Q/A gets messy (confusing/annoying the jury).
They try to play lawyer instead of witness.
The Normal Rules of Communication Don't Apply. When people speak with one another outside of litigation, they send, receive, and rely on common universally understood communication cues that help facilitate good faith communication. For example, when someone you're speaking with furrows his brow, that means something; when he reacts with annoyance, that means something; when he smiles, that means something; when he goes silent, that means something. As human beings, we interpret these communication cues and respond accordingly (click here for a more in depth explanation of the process). In litigation it's different. The meaning of the communication cues sent to the witness by opposing counsel are often times an inversion of what they are in all other communication environments. This causes a great deal of confusion and frustration in the witness, and it results in ineffective, sometimes outright terrible testimony. Consider the following examples:
When opposing counsel reacts to a witness's answer with confusion, the witness tries to "fix" the answer, which is the appropriate response in normal communication. In litigation, the correct response is to do the opposite, i.e., say nothing and wait for the next question.
When opposing counsel reacts to a witness's answer with silence, the witness fills in the silence with unnecessary words, which is a typical response in normal communication. In litigation the correct response is to sit quietly and wait for the next question.
When opposing counsel reacts to a witness's answer with sarcasm, the witness might react in kind, or get defensive (or any number of negative reactions). In normal communication this style of reaction is common and understandable (although not advisable). In litigation it's almost never the right reaction. Instead, the witness should remain calm, confident, and professional.
When opposing counsel reacts to a witness's answer by challenging the truthfulness, accuracy, correctness, etc. of the answer, the witness will try to explain, defend, or justify the answer. In normal communication, this is an acceptable response. In litigation the correct response is to remain calm, confident and professional, and wait for the next question. If the opposing counsel takes it to the next level and asks: "Do you expect a jury to believe what you just said?" The answer is a calm and confident "yes." No explanation, no defense, and no justification.
These are just a few examples of how opposing lawyers invert the meaning of communication cues, causing witnesses to flounder (click here for a deeper discussion of the topic). Once witnesses understand how to interpret communication cues from opposing counsel correctly, they can not only survive, but thrive, even under intense cross-examination.
Conclusion
Testimony is a communication environment like no other. If witnesses aren't taught this, they will invariably make unnecessary mistakes in their testimony. However, once witnesses understand what testimony is and what it's not, they will be better equipped to handle testifying in a calm, confident, and effective manner.
For more insights from Litigation IQ, check out the following posts:
Jeff Dougherty, M.S.
President - Litigation IQ
713 392 8135
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