Bar News - September 16, 2015
Book Review: Tips on Speaking for Witnesses Misses the Mark
By: Review by Elsabeth McGohey
The Articulate Witness: An Illustrated Guide to Testifying Under Oath
By Marsha Hunter and Brian K. Johnson
Crown King Books, 2015
Paperback, 51 pages
“No – that’s why I got the ticket!”
I cringed. My well-dressed, articulate, confident client just volunteered to the jury, as cross-examination was drawing to a close, the inadmissible fact that she received a ticket after the motor vehicle accident. Few moments at counsel table have been as painful as that one. If she had not volunteered this information, the jury would never have learned it. On the bright side, she said it with confidence and poise.
Or so the authors of The Articulate Witness: An Illustrated Guide to Testifying Under Oath seem to think. A primer on the public speaking aspect of testifying in depositions or in court, this book is designed for attorneys to give to their clients or witnesses for review in preparation for testimony. This book is no substitute for preparing your client or witness; it prepares the witness only for the form of their testimony, not the substance. Further, at $8.99 for the print edition and $6.99 for the digital edition, it will likely only be worth buying in a handful of cases. Free web-based resources, such as “Preparing to Testify: General Resource Guide,” from the United States Department of Justice, contain many of the same pointers, albeit without the illustrations.
In reviewing this book, I imagined how giving this book to witnesses in trials over the years would have helped prepare witnesses or even helped the outcome of those trials. I concluded that this book would not have helped with most problem witnesses.
For example, nothing in this book would have helped my client keep inadmissible evidence to herself on cross-examination. Nothing in this book would have helped the key witness who showed up drunk at trial. This book also would not have helped when a key witness decided to testify to the exact opposite of what he told counsel in preparing for the testimony. Most painful moments in deposition and trial over the years would still have been just as painful if I had handed key witnesses this book to use in preparation for the event.
Even if I had given key witnesses this book, I question whether they would have used it. Human nature being what it is, the witnesses who really need this book the most probably would not crack the cover or take a few minutes to skim the contents (at 53 pages, with illustrations on most pages, even a thorough read of the book can be accomplished in a matter of minutes). The witnesses who do not need the book to present well at trial, on the other hand, will want to read it, thoroughly, and actually perform the exercises out loud.
Ultimately, the value of this book is that you can give it to your clients that are nervous Nellies. After thoroughly preparing the client on the substance of the testimony, you can send him or her home with a book to keep him or her occupied, for a short time, while you prepare. You can also give it to that client who, no matter how truthful the content of what he or she is saying, still sort of looks like a weasel. The book may not cure the weasel look, but it could help improve the client’s presentation. So long as the witness is thoroughly prepared on substance by the lawyer, this book is one more tool to help a busy lawyer reassure the client, or fine tune his or her presentation.
Elsabeth McGohey is a trial lawyer at McGohey Law. Her practice focuses on injury and consumer protection claims. She also handles contract, employment and other business disputes when litigation becomes necessary.