In the latest episode of his "Powerful Witness Preparation" podcast series, Be a Relentlessly Polite Witness, litigation attorney Dan Small continues his in-depth 10-part series on the rules for witness preparation. He warns that lawyers must prepare their clients to be relentlessly polite and positive as a survival technique. No matter the tone of the questioner, a witness must always respond almost infuriatingly polite and positive. It’s all about understanding the audience and the challenge.
The Audience - One of the most difficult adjustments for a witness is understanding that the lawyer is not necessarily the main audience. The main audience for the witness to win over is the judge and the jury. Arguing with the lawyer will only get in the way of the witness communicating to the real audience.
The Challenge – It is important that you make sure your witness understands that this isn’t a game. No one is scoring points. Their job is to listen hard, think carefully and answer questions when they can. All good questioners know that an upset witness is an unfocused witness. They will throw in a little sarcasm to get the witness flustered. They can’t let that happen.
On the surface, these may seem like two complex concepts to implement but these five tips will help your witness overcome the audience and the challenge.
1) Be positive - This is their testimony and they should say it proud and positively. They can’t let an aggressive lawyer influence their attitude. If a witness sounds defensive and negative, their audience will assume they have something to be defensive about.
2) Keep Your Cool - Surprisingly, being a witness can be an emotional experience because most people are used to others speaking to them in a positive way. Suddenly, they are being put under attack in front of an audience. They must remain positive and stand their ground in a polite and persuasive manner.
3) Don’t Tease the Bear - Everyone has a role to play and the witness questioning the lawyer will only distract them from their very difficult job at hand. Unnecessary antagonism can sabotage a witness from completing their job.
4) Leave it to the Lawyers - As a lawyer it is your job to be both the advisor and the protector of your witness. You are able to give and take the heat without it reflecting poorly on the witness. It is important that you advise your witness to pay close attention when there are discussions because they may influence how they answer questions in the future.
5) Don’t Play Games - A witness must keep it simple, clear and direct. It would be arrogant for them to think they can avoid the tough questions. If they can’t give direct, truthful answers to direct questions, they should not respond. A witness playing games will only make matters worse.
He wraps up the episode by giving an example of someone who would have benefitted from implementing these tips.
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