Written by attorney John M McKindles


The Internet is replete with advisory articles on how to prepare to testify. This article is intended for broader application, with the hope that you can avoid even getting to the point of testifying. The following, easily retained tips are essential when facing deposition or trial, and they are equally helpful in everyday communication:

Speak simply and accurately.

  • Use words that are comfortable for you.
  • Approach with confidence.
  • Apply the same effort to listening as to speaking.
  • Think before you speak.

Speak Simply and Accurately

In a deposition, you will never convince the questioner of the blinding righteousness of your position, so do not try. Keep your responses brief, yet accurate. Take your time before you respond; this is not a race to a finish line. Take a thoughtful breath before responding, and then speak at a comfortable pace. This pattern builds on itself as you gradually become more familiar with the questioning format, environment and interactions.

If you do not understand a question, say so. If you want it repeated or asked in a different way, say so. If the correct answer is that you do not know, say, "I don't know." If you don't remember, say, "I don't remember." If you're not entirely certain of the accuracy of your response, it is permissible to start with "To the best of my present recollection ..." This will give you time to consider changes to your response before you read and sign the deposition transcript.

Finally, answer only the question that is asked. If the questioner asks, "Do you know what time it is?" your answer should be "Yes," not "It's 2:30." Do not play games with the questions; if you do, you will promptly learn how quickly the questioner can shake your confidence.

Use Words That Are Comfortable for You

A corollary to this is to only use words you understand. When you come across a new word, check out its definition before you use it. If someone else uses a word you do not understand, ask him or her to tell you what it means (in the context used). You will either learn a new word or teach the speaker to use only words that they know.

Commonly used words work very well for testimony or conversations. They also keep you in comfortable control of the communication. Always bear in mind that you control the conversation or testimony because you control what you say. (How often have you watched a polished politician respond to a question without answering it, deftly diverting in a more comfortable direction?)

Another benefit of using comfortable words is that you will tend to retain the attention of the listener, who invariably will not want to put the effort into thinking too hard.

Finally, using only words that you truly understand spares you the awkwardness of being asked on the record what you meant by a word. It's a trap with no exit.

Approach with Confidence

This is, in part, a self-image issue, but it also has a lot to do with preparing yourself by reviewing all relevant facts. Since testifying has as much to do with credibility as with recounting accurate facts, confidence is king. Familiarity with the facts controls your confidence.

Another confidence builder is vigilance, not anxious dread. Anticipating the direction of possible questions will help you be mentally and emotionally prepared to respond to them.

Finally, as every experienced trial lawyer knows, the projection of quiet confidence tells both sides' attorneys how persuasive you will likely be as a witness. This may invite earlier settlement of issues on favorable terms.

Apply the Same Effort to Listening as to Speaking

Contrary to conventional wisdom, being a good listener can be just as hard as being a good speaker. In a typical conversation, the person who is not speaking is not really listening; rather, they're just keeping quiet until it's their chance to speak.

Listening well requires more than hearing what is said. It includes hearing how it is said.

In testimony circumstances, lawyers use various strategies in phrasing a question. Examples include rapid-fire patterns intended to elicit the same style of response, in hopes of increasing the possibility of misstatements, or frowning or looking surprised in response to your answer as a non-verbal attack designed to pierce your self-confidence.

If you listen to the questioner's demeanor, voice modulation and other body language, you get a much clearer impression of what is actually being communicated. Moreover, these signals feed you helpful information for how to construct and convey your response.

Think Before You Speak

How often have you found yourself shifting gears in mid-comment because you worked through the thought while you were speaking? Most people who stumble in the middle of a sentence are not struggling to find the right words; rather, they are struggling because they did not complete their thought before they started to talk.

It usually takes only an instant to complete your thought or concept before you start speaking. This time allows you to confirm that you actually want to make that comment, at that time, to that listener. Once the thought is complete, words flow more smoothly. Before long, listeners will be as impressed with your thoughtful, fluid and confident presentation as you are.

Conclusion. I hope these simple suggestions help ease your anxiety about testifying and otherwise help you deliver the right message in everyday communication. ?

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