Business executives are finding themselves being sworn in at an ever
increasing frequency.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
"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.
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.
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.
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.
Misstatements
Misstatements should be corrected as soon as possible. Be assertive in
attempting to put accurate information into the record.
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.
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.
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 ...
Helpful Redefining
Occasionally, there is nothing wrong with your redefining the question in a
helpful way. Make the question fit your answer.
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.
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):
"I am not receiving any additional compensation to testify in this case."
"I will receive my usual salary, nothing more."
"I turned the subpoena fee over to my employer."
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.
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:
"I'm sorry I lost the question in there somewhere. May I please have the question again?"
"Let me make sure I understand the question." (Restate without all the frills)
"I didn't hear the question."
"I heard several questions in there. Which one do you want me to answer?"
"I heard multiple questions. Let me answer the one I recall about _____."
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.
Don't Memorize
Be conversational. Don't attempt to memorize your testimony or certain
answers.
Calculations
Have a game plan in case you are asked to perform calculations. You have
options:
Do it.
Request a recess.
Cite where it has already been provided.
Offer to do it later and provide it.
Ask if counsel has already completed the calculation ... accept subject to check.
Other?
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.
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
Avoid Hyper-correct Speech
Use your own style and words. Do not attempt to be overly formal in your
word selection.
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.
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.
