A witness prep tip you likely wouldn’t think of on your own
“During deposition, do not put your fist in your mouth.”
Those mock jurors are filled with good advice. Some of which may seem obvious. Fisting one’s mouth during deposition testimony would certainly not be a concern in most witness preps, but the myriad ways people display nervousness is always eye-opening. There is no one like a mock juror to point out the odd quirks of witnesses.
There are many examples of public figures with foot-in-mouth and you likely don’t need us to point them out to you. But in all the years we’ve been doing pretrial research, I cannot recall a single time before when a mock juror had something like this to say:
“I don’t know the point in his deposition that the video was taken from, but he seemed like he was barely hanging in there. I noticed the voice of the lawyer was real booming and kind of like baritone and it was real aggressive. I don’t know if he was just being worn down that day, or whether the lawyer woke up on the wrong side of the bed or forgot a coffee in the morning. That questioning seemed pretty brutal and he was reacting by doing a lot of this kind of blinking and contortions. And kind of like he tried to put his fist in his mouth or something. It was strange, man.”
And he was right. It was strange. In response, the facilitator encouraged the observation, and commented that it was indeed unusual. There was a bit of anxiety expressed by mock jurors about giving such direct feedback. And then the facilitator commented,
“But here’s the thing: If somebody has an awkward mannerism that interferes with your ability to really pay attention to what they have to say, it’s better that they learn about that so it doesn’t stop you from focusing on the facts.”
Given permission, other jurors stepped forward with additional commentary. Our mock jurors are not always so funny–but sometimes a group is filled with bright and observant people who see the unintentional humor in the nonverbal behavior of anxious deponents trying hard [but failing] to stay cool. The mock juror comments contain witness preparation tips to which we are wise to attend. Frequently, trial counsel become ‘accustomed’ to the idiosyncrasies of witnesses, and overlook aspects of their presentation that startle a jury.
Style is personal: What a witness thinks looks attractive is not necessarily so
He looks pretty greasy in appearance.
Tell him to use less hair gel.
This is an often uncomfortable area for attorneys. There are many ways to give feedback to witnesses about their grooming. Perhaps the easiest is to simply say that the audience is a representative sample of the venire and has representative sensibilities. Witnesses should not make fashion statements. Tone it down. That means avoid expensive jewelry, excessive makeup, use minimal hair gel, and leave the Rolex and pearls at home. It isn’t judging, the client will likely see it as helpful advice. And it’s a lot more tactful than our mock juror feedback.
Male witnesses should avoid ‘fashion forward’ colors and fashions
Wow. Nice [lime-colored] suit! He looks like a Mafioso.
Most of us talk to witnesses about how to dress for trial testimony, but don’t make the point well enough for depositions. Atypical fashion choices often do not work well in terms of juror observations about credibility or professionalism. Other times, such as a case we worked with an older, bow-tie wearing inventor, they help observers construct a quirky and creative persona for the witness. And still other times, like the oil and gas company witnesses who showed up to deposition wearing clean clothes of the style they wear to the field, observers assigned credibility and substance to the witness. If the witness looks markedly different in their trial presentation than in their deposition, they are seen as being less reliable and trustworthy.
Beware the “celebrity look-alike” witness
He reminds me of Donald Rumsfeld. I’m not sure if that’s good or bad.
Often, we don’t see the resemblance until mock jurors point it out. It doesn’t matter who the witness resembles. What matters is the idiosyncratic association to a juror. Celebrities attract opinions, and no one is universally loved (except maybe Oprah). The best way to minimize interference from this sort of situation is to simply point out the resemblance and the witness can say “I’ve never heard that before” or “I’ve heard that a lot!” and then answer the testimony directly and succinctly. Or a glib comment about what the witnesses’ spouse says about the comparison. The resemblance is brought up and dismissed for a focus on what is indeed relevant.
Small nonverbal behavior can become hugely distracting:
Why does he lick and bite and chew and purse his lips so much? It’s not good. His lips are just going to be gone by the time he is done testifying.
Yes. And he should keep his tongue in his mouth.
Often, you won’t see this sort of behavior until deposition commences and anxiety rises or fatigue sets in. Many of us, for example, have seen the “Rainman” Bill Gates deposition excerpts. It can happen to the smartest witnesses. Unusual witness behavior (usually nonverbal) and eccentricities in appearance or attire can distract listeners from the content of the testimony (as can unusual case narratives).
In terms of your efforts to prepare witnesses, what’s important is to think through how any video will be used and who will see it. We tell witnesses to always keep their audience in mind. In deposition this is a real challenge, because their “audience” is never present. The witness’ audience is always the jury. So be unfailingly polite and respond to questions while managing your anxiety off camera.
For example, you can curl your toes in your shoes or tense and then relax your calves. As long as it doesn’t show on camera–and is fairly unobtrusive as well as helpful–use it to help manage your anxiety. But do not rock in your chair. In fact, if the chair rocks or is on wheels–replace it with one that doesn’t so you do not self-soothe or unconsciously display discomfort by rocking or swiveling without realizing what you are doing.
There is a difference between eccentric, quirky, and non-pretentious behaviors and those that are just plain odd. Or as our mock juror would say, “It was strange, man.” Pre-trial research is a good way of figuring out if highly identifiable behavior or attire will be endearing or distracting to jurors. Although let’s just be crystal clear here. We cannot think of any situation where putting your fist in your mouth during testimony is going to endear you to jurors. (In case you were wondering.)