March 7, 2009 (Original publish date) • By Dennis Beaver
In our last two articles, we looked at how appearance and behavior can have a powerful influence on the most critical element in any case: Credibility. We can have great facts; all of our ducks lined up in a row, but if a judge or jury does not believe us or our witnesses, then the case is lost.
This time, we’ll take a good look at testimony — at ways of making your testimony more effective. As you’ll see, those things which get us to vote for a candidate also influence the decision of a jury. But first, a question:
Research in Psychology and Communication Studies consistently proves what we know from the real world: A judge or jury will believe a witness if (1) that person seems trustworthy; (2) has a good grasp of the facts; (3) is able to clearly communicate; and, (4) does not appear biased or prejudiced for or against one side or the other.
“I tell my clients to think of a trial very much like the classroom,” Attorney James Faulkner told me. He has “lived” in the courtroom for much of his 30 years as a trial lawyer in Southern California.
“The judge or jury expects witnesses to educate them as to what happened that brought everyone together, today, into the courtroom. This applies just as much to the average person who saw the auto accident, as to the expert witness who testifies as to how the accident occurred.”
Mr. Faulkner was quick to point out that while on the witness stand, “There are a number of witness behaviors which can boost their credibility, and many which will only serve to create doubt.”
“Remember, a jury or judge is an audience, one with an important role, but still, a real audience. Doubt in the minds of a juror is created by those very same things which annoy any audience: Verbal and non-verbal behavior which says, “I’m not real sure about what I am telling you!”
If ever there was a time for a client “to pay attention to how they look, sound and behave, it is when they are on the witness stand,” Faulkner stressed.
“All of us — from the average person to experienced trial judge — tend to give less credibility to people who have what is called powerless speech. This is a speaking style loaded with expressions like: um, uh, I believe, maybe, kind of, I’m not sure, often combined with non-verbal communications that injects real doubt, such as looking downward, at the floor, in other words, appearing evasive.
“Another example of powerless speech is where the witness makes a statement, but the way in which they speak makes it appear they are asking a question, with a rising inflection. For example, the statement, I saw him standing at the door with a gun in his right hand may sound as if there is a real question as to the presence of a gun in the first place. This can be very damaging,” Mr. Faulkner points out.
“Now, it is true that from some parts of America, a rising inflection is part of the speech pattern, like an accent. In these cases, it is important to let the jury know your client normally sounds that way, and is not unsure of what he or she is stating.
“Non-verbal behavior will have a positive or negative influence on how a jury perceives the witness. The more up-tight, looking down, avoiding eye contact with the jurors, judge or lawyers, gestures which suggest weaknesses — all of this hurts a witness.
“Communication research — using test juries — also has zeroed in on the rate of speech — how fast we speak as having an influence on credibility. If a witness has a pleasant, conversational delivery, and speaks at a normal, easy to understand speed, this helps credibility. Speak as if you drank two pots of coffee — bouncing off the walls — this isn’t good,” he underscored.
California is the most ethnically and culturally diverse place on the planet. It is common to have a trial in which witnesses from many different nations, cultures and religions will be somehow involved.
It is critical that a trial lawyer understand that what is viewed as respect in one culture can be seen as evasiveness and dishonesty by another.
The veteran attorney had this concluding piece of advice for anyone who will be testifying:
“You need to be prepared to testify. If you have a lawyer, then it is important to meet well in advance and review the facts. No amount of polish can replace a failure to understand or recall the facts. Testifying is serious business. Take the time necessary to know your case, and speak from the witness stand the way that you would like to hear a witness testify.”
Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.