2015 Spring Conference
WITNESS: HOW TO
TESTIFY EFFECTIVLY
May 5, 2015
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WITNESS: HOW TO TESTIFY
EFFECTIVLY
Act 54 Course #17935
2 hours Administrative
Instructor: Peter Letzmann, #153
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Turn it OFF (or vibrate), please.
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Peter A. Letzmann
• 248 705-9901
• peter@letzmann.com
• Attorney
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City of Detroit
City of Pontiac
City of Troy
Resort Township
Solo
• Mediator
• Educator; Oakland U,
GVSU, Ferris & others
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FIRST THINGS FIRST
-Goals
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-Network – make an effort to meet people
-Participate – ask questions and share
experiences, especially if you have some
information or techniques that will help
-Take lots of notes – you will learn more.
-I will try, with your participation not to
make this a lecture.
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• Find the “big ideas”
– ___________________________
– ___________________________
– ___________________________
• Fill out the evaluations, honestly, and leave
them with us at the end of the program
• Share your “big ideas” when you get back
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• Write a “Dear Boss” thank you letter
– Thanks for letting come to the COCM
Conference
– The items I learned and want to share with you
– The next conference is September 21-25 and I
would like to attend and learn.
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Pre-test
1. What is the most stressful thing a
person can experience
a. Suffer the death of a loved one
b. Lose your job
c. Be a witness (or speaking in public)
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Pre-test
2. What can be done to relive anxiety of
being a witness
a.Talk to friends
b.See a professional psychologist
c.Preparation
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Pre-test
3. Eye contact is necessary
A. True
B. False
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Pre-test
4. In court, who is your audience
a.
b.
c.
d.
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Plaintiff’s attorney’
Defendant’s attorney
Judge or jury
Court reporter
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Pre-test
5. Reduce your fear by
a. Having a couple of drinks
b. Eating a big meal before
c. Preparation and practice
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What Do You Need to Know?
• Why do I feel so anxious and what can I
do about that?
• Why am I being called to be a witness?
• Where will I have to testify?
• What will I have to do as a witness?
• How can I prepare to be a witness?
• The goal is believability
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Part I BEING ANXIOUS
• Being a witness is like giving a speech
• Psychologists have told us the three
things people fear the most are:
– Death of a loved one
– Loss of a job and
– The number on fear is giving a speech,
making a presentation or being a witness
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Why Are Witnesses Anxious?
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Unfamiliar situation
Lack of confidence
Sense of isolation
Self-consciousness
Fear of looking foolish
Fear of the consequences – losing the
case
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What Can You Do About
Anxiety?
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Know what is going to happen
Be prepared – know the facts
Don’t be intimidated
Relax your voice
Relax your body
Practice
If you know what you are doing you will be
less nervous
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Part II BEFORE GIVING
TESTIMONEY
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The need for good record keeping
Anticipate being called as a witness
Informal statements
Being called to testify
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The Need for Good Record
Keeping
• Observations are best remembered
when quickly recorded
• Evidence should be saved for trials
• Identification of other witnesses
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Anticipate Being Called As a
Witness
• Keep track of time – cost recovery
• Make more detailed notes than normal
• Originals should never be taken from
the place they are kept
– Photocopies serve the same evidentiary
purpose
– Criminal penalties for removal
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Informal statements
• Caution
• “Just want to know what happened” –
attorney, para-legal, investigator
• Check with your attorney first
• Policy and procedure: Contacts With
Outside Investigators, Para-legals and
Attorneys Regarding Cases Involving
the Government Entity
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Being Called to Testify
• Subpoena – bring the body
• Subpoena duces tecum – and bring
documents, etc.
• Notice to testify (verbal or written) –
may require you to bring documents
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Part III TESTIMONY
Any statement made before the court
(including testimony taken at a
deposition). In most cases this word
refers to sworn verbal statements made
by witnesses appearing in the courtroom
to give evidence, however technically any
statement made in a proceeding before
the court is testimony.
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Type of Testimony
• Opinion testimony
– Qualification as an expert
– Opinion as to how or why
– Technical objections
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Type of Testimony
• Lay testimony – your perceptions
– See
– Hear
– Smell
– Touch
– Taste
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Four are killed in New York City,
March 18, 2008
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Newsday.com
Families of NY crane collapse victims sue
NEW YORK, March 30, 2009
The families of two men killed in a crane collapse have sued
New York City, several construction companies, and crane
owners and operators.
The victims were 30-year-old Donald Leo and 27-year-old
Ramadan Kurtaj. They died when the crane fell on
Manhattan's Upper East Side on May 30, 2008.
The two wrongful death lawsuits were filed Monday in state
Supreme Court.
They say New York Crane and Equipment Corp. put a
defective 200-foot crane into service and the city allowed it
to happen.
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CREWS RESTORING ELECTRICITY IN
DOWNTOWN GRAND RAPIDS AFTER CRANE
COLLAPSE
The Grand Rapids Press, Saturday March 28, 2009, 12:58 PM
GRAND RAPIDS -- Consumers Energy line workers say that
power should be restored around 5 p.m. Saturday to about
three blocks near South Division Avenue after a
construction crane collapsed Friday night into an alley and
parking lot. No one was injured. …
• The crane's operator was uninjured, construction company
representatives said. A portion of the crane tipped into a
hole and caused the boom to fall, landing 30 feet from the
deck of Rockwell's Kitchen and Tap, 45 S. Division Ave.
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Connecticut Victims of Rhode Island
Nightclub Fire Sue 27 Defendants.
By Jesse Hamilton, The Hartford Courant, Conn. Knight Ridder/Tribune Business News
Jun. 6, 2003--NEW LONDON, Conn.--Attorneys
representing survivors and the families of victims of the
deadly nightclub fire in Rhode Island are suing a long
list of defendants for negligence.
The group of New London attorneys filed the $100 million
lawsuit Thursday in U.S. District Court in New Haven.
The 526-page complaint accuses 27 defendants, including
the owners of The Station nightclub, the band that
performed the night of the fire and others.
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Where Will You Have to
Testify?
• At Administrative hearings
– Relaxed rules of evidence
– Less formal than trials
– Some examples
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Where Will You Have to
Testify?
• At Depositions
– Under oath, before a court reporter, usually
at an attorney’s office
– Observe and test you as a witness
– Discover your background
– Discover what facts you konw
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Where Will You Have to
Testify?
• At depositions (continued)
– To gain “admissions”
– To “lock-in” your testimony
– To record your testimony, in case you are
not available for trial
– Don’t gain a false sense of confidence
– Your attorney’s role
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Where Will You Have to
Testify
• At criminal courts
– State District Courts
– State Circuit Courts
– Federal District Courts
• At civil courts
– State District Courts
– State Circuit Courts
– Federal District Courts
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Part IV PREPARATION
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Metal preparation
Physical preparation
Body language
Refreshing your memory
Dealing with attorneys
Physical appearance
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Metal Preparation
• The jury’s first impression is made in the first
three seconds – smile and posture
• I look better than I feel – they don’t see how
you feel
• The jury wants you to succeed – they are
happy that they are not in your shoes
• A good faith mistake will not matter much –
don’t draw attention to your mistakes
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Physical Preparation
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Good nights sleep
Brush your teeth and use mouthwash
Look presentable
Go to the bathroom before you take the
stand
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Physical Preparation
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Breath but don’t hyperventilate
Shake up your hands
Vocal exercise, i.e., A-E-I-O-U
Use all the tools
– Words or what you say = 10%
– Voice and enunciation = 35%
– Body language, eye contact, manner and
appearance = 55%
• Be confident
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Body Language
NONVERBAL BEHAVIOR = INTERPRETATION
• Brisk, erect walk = Confidence
• Standing with hands on hips =
Readiness, aggression
• Sitting with legs crossed, foot kicking
slightly = Boredom
• Sitting, legs apart =
Open, relaxed
• Arms crossed on chest =
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• Walking with hands in pockets,
shoulders hunched = Dejection
• Hand to cheek = Evaluation, thinking
• Touching, slightly rubbing nose =
Rejection, doubt, lying
• Rubbing the eye = Doubt, disbelief
• Hands clasped behind back = Anger,
frustration, apprehension
• Locked ankles = Apprehension
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• Head resting in hand, eyes downcast =
Boredom
• Rubbing hands = Anticipation
• Sitting with hands clasped behind head,
legs crossed = Confidence, superiority
• Open palm = Sincerity, openness,
innocence
• Pinching bridge of nose, eyes closed =
Negative evaluation
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• Tapping or drumming fingers =
Impatience
• Steepling fingers = Authoritative
• Patting/fondling hair = Lack of selfconfidence; insecurity
• Tilted head =
Interest
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• Stroking chin = Trying to make a
decision
• Looking down, face turned away =
Disbelief
• Biting nails = Insecurity, nervousness
• Pulling or tugging at ear = Indecision
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Refreshing Your Memory
• Review the record
– Your notes, calendars, logs, etc
– Documents and official records
– Physical evidence, including pictures
– Never give up the original document
– Policies and procedures, SOP, Admin
memos
• Refresh your memory of things not in the
record
– Group discussions
– Re-enactments
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Dealing With (Your) Attorney
• Take time
– To confer
– To become confident
– To become comfortable
• Where are you “vulnerable?”
• When your attorney objects
– Stop
– Listen
– Follow the instructions from the judge or
your attorney
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Dealing With (Your) Attorney
• What questions will your attorney ask
you
• What questions will the other attorney(s)
ask
• What is the theory of the case
• What are the desired results
• What is the purpose of your testimony
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Dealing With (the Other)
Attorney
1.
2.
3.
4.
The sweet talker – don’t be seduced
The bully – don’t be intimidated
A combination –
Remember the his role
– To discredit you
– To discredit your testimony
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Physical Appearance
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No second chance for a first impression
Appropriate attire
Hair and make-up
Mannerisms
Look in the mirror before you leave the
house
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Check List – Things to Do
1.
2.
3.
4.
5.
Tell the truth!
Be humble
Be yourself
Dress neatly
Arrive on time … but be patient
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Check List – Things to Do
1.
2.
3.
4.
5.
Be prepared
Try to relax
Speak clearly
Be aware of your body language
Stick to the facts
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Check List – Things to Do
1. Answer all the questions to the point
2. Answer only the question that was
asked
3. Answer the questions verbally
4. Look at the jurors (or the judge) and
speak to them
5. Make sure you understand the
question
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Check List – Things to Do
1.Expect to be questioned by several
people
2.Think about your answer before you
give it
3.Project your voice
4.Correct mistakes immediately
5.Stop when an objection is made
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Check List – Things to Do
1.Practice
2.Others
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Check List –
Things NOT to Do
1.
2.
3.
4.
5.
Be brilliant
Be arrogant
Be angry or lose your temper
Memorize what you will say in court
Over prepare
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Check List – Things Not to Do
1.
2.
3.
4.
5.
Volunteer
Exaggerate or guess
Talk to the jurors
Fear a negative outcome
Start answering before the question is
finished
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Check List – Things Not to Do
1.
2.
3.
4.
Be afraid to say “I don’t know”
Avoid answering a question
Let them put words in your mouth
Be afraid to answer the trick question
a.
b.
c.
d.
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Are you being paid?
Who told you to say that?
Have you discussed this case with anyone?
Then your story is …?
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After the Deposition or Trial
1. Read and sign the deposition to catch
errors; Unless you request it, it is
waived
2. Review the testimony with you
attorney
a. How could the testimony have been
improved
b. How could the matter been prevented
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Part V PRACTICE,
PRACTICE AND PRACTICE
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Review the record
Do not frown (smile if appropriate)
Practice speaking, alone
In front of a mirror
Using a audio, or better a video recorder
In front of your friends / family
Moot court / mock testimony
Visit the court room, if you can
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