It costs you nothing to be a gentleman or lady. However, a lack of civility can be very costly. The manner in which a witness or party testifies is critical to their credibility and understandability to the jury. You want witnesses to testify in a natural manner, but they need to be understood and well received. If you have a witness who talks a mile a minute, then the best way to persuade them that they need to speak in a slower and more measured tone is to allow them to see exactly how they testify.
I will typically meet with a witness or a client and, through the magic of a cell phone or iPad, record the testimony and then allow them to view it. I then asked the witness or client to tell me what they see and how they would improve such a witness’s testimony if they were in my position. Most people will be a harder critic of themselves than you could ever be. After we discuss problems with their testimony and their manner of delivery, I covered the same line of questioning again and let them watch the new video.
The only thing a client or witness has absolute control over is their behavior and demeanor. By emphasizing this point, you can both empower them and relax them. No matter how rude or aggressive the other attorney is, it’s important for them to remain calm and composed. When an opposing attorney senses he has drawn blood, he will simply bore in with more of the same. A client or witness can tactically overcome this by simply remaining calm and truthful no matter how bad the answer seems to hurt.
Likewise, the client or witness needs to be cautioned to avoid any sarcasm, insincere or solicitous comments. Remember, this is their chance to make a good impression and show they will be a likeable and empathetic witness to the jury. It’s not their job is not to exchange verbal jabs with the other attorney. There is an old saying, “If you wrestle with a pig, you’re bound to get dirty.” Don’t let your client or witness get dirty with the other attorney. Ultimately, they will lose