Before getting to the “noise issues,” please consider a perfect example that was in all the papers this week about the defective — to put it nicely — testimony of the president of Westland/Hallmark Meat Company before a congressional committee about his company’s use of downer cattle for food products. He denied doing that. He was then confronted with video footage that has been on the Internet for two weeks showing that the charge was in fact true. He then had to recant his denial. That’s what happens when a key witness is not prepared or refuses to become prepared before he takes the oath to testify truthfully.
Noise reduction consists of purging the witness’ speech patterns of habits of expression that are irrelevant and potentially harmful. It is important to re-emphasize here that you are not coaching him to speak untruthfully, but to speak truthfully in the most effectively communicative manner. Most of us are not conscious of how others hear us when we say things. We think we are doing just fine when misimpressions are sometimes occurring.
One of the worst things that people do is self-justify. The answer to “Did you do that?” is not “I would never do such a thing.” The answer is a yes or a no. Many who hear self-justification and not direct testimony come away with the impression that the witness has just tried to duck the question for the purpose of concealment. Teach the witness to listen to the question and to answer the question that is being asked and not some other imagined question. The questioner is not asking him to give a speech about his rectitude and integrity. He is asking if something happened; was the witness involved; how was the witness involved; and what was the purpose of doing whatever it was that was done. These will be asked in separate questions and need to be responded to directly. The witness needs to know that he will not be entrapped by this response pattern. If you are calling the witness and are on direct examination, he will be asked these questions in a manner that will give him the opportunity to say what needs to be said. If he is being called by the opposition and roughly examined, you will be there to resurrect his opportunity to say the proper things immediately after the opponents have concluded their questioning.
He can feel comfortable that he will not be left hanging from some limb. Long-winded statements of company policy, mission statements (the single most horrid language usage in the universe), and rectitude do as much damage to credibility as false testimony. When you aren’t sticking directly to the point and answering questions forthrightly, the perception is that you are being evasive for purposes of concealment and false testimony. If the answers from the witness are direct and forthright, the impression left with judge, jury or arbitrator will be that you are being truthful. This includes direct answers about the good and the bad. You shouldn’t be there in the first place if the bad outweighs the good. You should have settled and taken your medicine in private.
There is a tendency to speak ill of the opposition. If the opponents’ acts are blameworthy, a straightforward statement of what they have done ought to suffice and leave the desired impression of what miscreants the opposition truly are. Name-calling and undue rancor leave a bad impression. Let their conduct speak to the issue of what they deserve, not your opprobrium and epithets. Hopefully, they will not be so gracious when it is their turn to speak, and they will by contrast show that you are being direct and that they are not. Many lawyers make the mistake of thinking that accusations, often repeated, are a substitute for evidence. It is not and will elicit proper objections and rulings from the bench that confirm your view of the negative value of name calling as a “filler” for evidentiary voids.
You should teach the witness his proper role and show him how attempts to confuse his role with yours can get him into big trouble. His role is to provide truthful information and to be a gentleperson. Yours is to be the advocate. It is your function to be concerned about where your opponent is going with a line of questioning. If the witness deems that to be his function, he is not concentrating on simply giving accurate answers. If he gets into that mode, he will not be convincing. Constantly coach him to simply answer the question that is being asked and leave the advocacy to you. Role-playing in this and in every other phase of witness preparation is an indispensable tool.
There will be occasions, to be sure, when something pops into his mind, prompted by a question in most instances, that he had completely forgotten about until that moment. He will not have discussed this with you, and he will be fearful of it. And this fear will reveal itself in physical mannerisms visible to the judge, jury or arbitrator. If you have vetted this possibility with him before he is called to testify, he will know how to deal with it. In such an instance he should be taught to ask himself in his mind whether this surprise recollection is a fact or an opinion. As he is obligated to speak truthfully, a fact should be stated if it is responsive to a proper question. If it is a matter of his having a doubt about some set of circumstances, that doubt should be kept to himself until you have an opportunity to speak with him about it on the next break. Then you and he sort it out, and if further explanations are called for, you clean that up when you get the witness back (at trial) or decide whether to clean it up now or wait till later (in a deposition).