Witness Survival Guide

Whether testifying before a congressional hearing, legislative committee, state commission or grand jury, it's normal to be anxious in these intimidating settings.

K. W. Huskey Associates training seminars simulate these conditions and empower trainees with tools and techniques including the following:

PREPARATION

1. Review Testimony
   Be familiar with all the written testimony submitted by your "team." Know who is responsible for each specific subject. Review previous testimony that could be contradictory and be prepared to explain the differences.

2. Discrepancies
   Alert counsel to any inconsistencies with previous testimony you presented. Develop a strategy for dealing with them ... don't let opposing counsel divulge the discrepancies. State the inconsistencies and explain why. This will give you the opportunity to expand on the virtues of your current proposal and avoid or limit cross-examination on this issue.

3. Rehearse
   Review direct questions and anticipated cross-examination with your counsel. Involve as many members of the "team" as possible. Rehearse your role as an advocate ... practice telling your story.

4. Idiosyncrasies
   Be familiar with any unique likes and dislikes of the judge, hearing officer, etc. Your counsel should be able to point out key do's and don'ts.

5. Exhibits
   It is sometimes helpful to enlarge key charts, graphs, etc. to 30 x 40 "posters." This serves to focus attention on specific information. Your rehearsals should include the use of exhibits when appropriate. Clear all exhibits with counsel ... no surprise exhibits.

6. Rest
   Get plenty of sleep the night before. You have no idea how long you'll be on the stand and you don't want to run out of gas at the half-way point.

7. Grooming
   Wear conservative clothing that will enhance your professional image. Avoid flamboyant styles and bright colors. Avoid extravagant and expensive looking apparel. Wear little if any jewelry. Avoid pins with symbols and subtle messages. Hair should be well manicured and pulled away from your face. Sunglasses should not be worn and photosensitive glasses should be avoided. Do not wear tight fitting collars.

8. Arrive Early
   Allow plenty of time for a leisurely trip to the facility. Arrive early and locate the exact room to be used. Find a comfortable location to relax and collect your thoughts. Do not discuss your testimony with curious strangers. Visit the rest room, if necessary, and while there, take care of last minute grooming details. If nervous, do diaphragmatic abdominal breathing.

9. Materials
   Bring only your written testimony and exhibits with you. Additional reference materials should be discussed with your counsel ... "surprise" evidence can prolong and broaden discovery.

10. Calculator
    If your testimony includes calculations performed by you or under your direction ... bring your own calculator. You don't have to advertise its presence or invite a challenge to compute. Don't get caught off guard being handed a strange machine that you are unfamiliar with ... complete with amusing musical accompaniment.

11. Meals
    Avoid large meals immediately before serving as a witness. This may cause you to feel sluggish and sleepy, especially after lunch.

ON THE STAND

1. First Impression
   Conduct yourself in a professional and mature manner at all times, including breaks and down time before the hearing commences. When called, approach the stand with confidence. Stand erect with shoulders straight. Know where to go to be sworn in, when and where to be seated.

2. Body Language
   Sit with both feet flat on the floor. Keep your lower back against the chair. Do not slouch. Keep your hands in a comfortable position on the table. When no table is present, rest your hands comfortably in your lap or on the arms of the chair. If swivel chairs are provided, avoid swinging back and forth. Avoid nervous hand and foot movement. Do not bite your lip, pen, pencil, finger, etc. Do not chew gum or smoke. Look and be alert.

3. Exhibits and Props
   Handle with care. You subtly imply the worth of props and exhibits with the grace and delicacy with which they are handled.

4. Eye Contact
   Look at the person questioning you. Avoid looking down or to the ceiling. Do not look at your attorney each time before answering question posed by other parties. Answering to the decision makers will help avoid the antics of opposing counsel and make interruptions more difficult. Common sense applies here.

5. Handkerchief
   Have a handkerchief with you at all times in case you sneeze. If sweat builds up on your forehead or upper lip, resist wiping it off unless it is distracting you or beginning to flow down your face.

6. Voice
   Speak in a steady and conversational tone. Don't shout or whisper. Sound confident. Speak loudly enough so everyone can hear you. If a microphone is present, adjust it by moving it closer to you. Do not crane your neck to reach the microphone.

7. Speed
   Court reporters may interrupt if your rate of speech is excessive. A casual, conversational pace is best ... however, speaking too slowly can make the witness appear tentative.

8. Word Selection
   Use your own words; don't let others plant their words in your statements. Don't repeat negative or offensive language. Don't let opposing counsel put words in your mouth. Profanity and off-color language are inappropriate.

9. Jargon
   As a rule, jargon should be avoided but may be necessary in explaining technical issues. How sophisticated are the decision makers? Will they understand your testimony? Use them as your barometer in establishing the appropriate level of complexity. Interpret as needed.

10. Titles
    Know the cast of characters and precisely how each should be addressed. Your counsel will be helpful here. No matter what name or title you may be called or how poorly your name is pronounced, do not join in the antics.

11. Poise
    Do not get angry. Stay calm at all times. Do not engage in personal attacks. No matter how aggressive the cross-examination gets, keep your temper under control. If you feel yourself losing control or beginning to get nauseous, request a recess. Discuss this possibility with your counsel ahead of time.

12. Argumentative
    Don't argue back. Play mental chess. Kill with kindness. Slow down, ask for clarification, break eye contact ... be pleasant. Try, "I'm sorry, which question do you want me to answer?" Perform for the pleasure of the decision makers ... not opposing counsel.

13. Don't Hurry
    Take your time. Don't let a rapid-fire questioner trip you up by depriving you of the opportunity to collect your thoughts. If you need a moment to think, take it. Also, let the questioner finish. Don't interrupt.

14. Short Answers
    Respond confidently but only relate information asked for. Don't volunteer information. Give direct answers to direct questions. Information that is not responsive to the question may be stricken and may make you appear to be evasive. If elaboration is needed, you'll be asked. Don't go overboard in providing one-word answers. Be cooperative but to the point.

15. Home Runs
    Occasionally, the witness may wish to provide material beyond what is required to be responsive to the question. This is important when opposing counsel dwells on trivial items and fails to allow important points to be developed. Don't go overboard on this or you may appear to be evasive or manipulative ... or you may be reprimanded by the hearing officer.

16. Be Their Champion
    Position yourself as the consumers' champion. Be on the side of the decision maker. You both want what's best for the consumer. Tie your lines of argument back to this noble cause. Make their decision easy.

17. "Objection"
    When counsel objects, refrain from answering the question until instructed to do so. "Sustained" (valid) and "overruled" (invalid) will be used. Never mind, do not proceed with an answer until instructed to do so. Listen to your lawyer's argument. It may give clues for an effective answer. Overuse of objections may make counsel appear combative.

18. Create Opportunities For Counsel
    A hasty response to a difficult, awkward or inappropriate question takes your counsel out of the game. A brief pause before answering creates an opportunity for counsel to step in if appropriate. Sometimes counsel will object just to buy you time.

19. Opposition Documents
    When opposing counsel introduces new documents for witness review and comment, counsel should refrain from objecting until documents are delivered to the witness. Objection should be lodged at that time to allow witness maximum time for review. With or without the objection ... take your time reviewing the document.

20. Don't Guess
    When you don't know, say so. Do not offer to find out or to look it up in your resource material. This is counsel's decision. "I don't recall" is a legitimate answer.

21. Misstatements
    Misstatements should be corrected as soon as possible. Be assertive in attempting to put accurate information into the record.

22. Blemish Players
    Opposing counsel may try to pick your testimony apart typo by typo ... lots of little errors can begin to erode confidence in the process or the product. While this is no fun, don't get defensive. Admit errors/mistakes. After all, you are only human. Serious errors should have been pointed out to counsel. The care and feeding of an efficient case coordinator/proofreader will be bright on your radar screen.

23. Tell the Truth
    Don't hedge. Don't bluff. No matter how damaging it may seem to be to you ... tell the truth. Live to fight another day.

24. Clarification
    Do not answer questions you do not understand. Ask for clarification. If you think you understand but aren't certain, don't answer until you are certain. It is the cross-examiner's duty to ask clear, precise questions ... however ...

25. Helpful Redefining
    Occasionally, there is nothing wrong with your redefining the question in a helpful way. Make the question fit your answer.

26. Admit Preparation
    Expect to be asked about any measures you and your counsel may have taken to prepare for your hearing appearance. It is perfectly legitimate and normal to have prepared, so don't hesitate to admit it if asked.

27. Pay
    Expect to be asked, "are you being paid to testify in this case?" A simple "yes" answer may not be as effective as one of the following (especially in jury situations):
    1. "I am not receiving any additional compensation to testify in this case."
    2. "I will receive my usual salary, nothing more."
    3. "I turned the subpoena fee over to my employer."

28. Multiple-choice Questions
    When asked questions with multiple-choice answers, it is perfectly acceptable to say "neither" if that is true. Don't get roped into accepting the questioner's answers. The same is true with "yes - no" questions. If you can't answer "yes" or "no," then appeal to the hearing officer and explain why.

29. Stop Statements and Record Building
    Opposing counsel will sometimes use cross-examination to make statements via mini speeches thinly disguised as questions. Counsel should help here. If not, try:
    1. "I'm sorry I lost the question in there somewhere. May I please have the question again?"
    2. "Let me make sure I understand the question." (Restate without all the frills)
    3. "I didn't hear the question."
    4. "I heard several questions in there. Which one do you want me to answer?"
    5. "I heard multiple questions. Let me answer the one I recall about _____."

30. Teamwork
    When pressed for information to be covered by another witness, don't hesitate to point this out. Counsel will try to keep cross-examination within the scope of your sponsored testimony.

31. Don't Memorize
    Be conversational. Don't attempt to memorize your testimony or certain answers.

32. Calculations
    Have a game plan in case you are asked to perform calculations. You have options:
    1. Do it.
    2. Request a recess.
    3. Cite where it has already been provided.
    4. Offer to do it later and provide it.
    5. Ask if counsel has already completed the calculation ... accept subject to check.
    6. Other?

33. Stop
    When you have finished an answer, stop. Don't get drawn into providing elaboration by a quizical look on the questioner's face, or by silence.

34. Avoid "Powerless" Words and Phrases
    Certain words and phrases detract from a witness's credibility and should not be used. They are: It seems like Kinda I think so Sort of You know Definitely Well Surely Um and Uh I guess Very Sir and Ma'am

35. Avoid Hyper-correct Speech
    Use your own style and words. Do not attempt to be overly formal in your word selection.

36. Graceful Departure
    It feels good to be dismissed ... but don't let it show. Exit with the same dignity and professionalism that you entered with. No high fives to colleagues, no winks, no thumbs up ... until you depart the building.

37. Experience
    Watch other company witnesses testify. This is a good way to learn how without actually sitting in the hot seat. Remember to communicate with other "team" members and to trust your counsel. If you're not sure, ask.