Webinar presenter Deborah Johnson answered a number of your questions after her presentation When Things Get Tough: Lessons for Courtroom Testimony. Here are just a few of her responses.
Audience Question: While you’re in court, what should you do when you are certain that the defendant perjured themselves while they were on the stand?
Deborah Johnson: You don’t do anything, that’s really for the lawyers. I think there are lawyers in the audience here who could better answer that question. But I think, unless you are asked a specific question, I think it’s not for you to talk about. So, if you’re asked a specific question by your counsel or opposing counsel, was that the truth, or do you know that to be true? Or do you have an opinion on what was different, or did you see something different? You can answer that question. But I think as difficult as it is, it’s not yours to talk about. It’s not yours to say. So boy, would that be hard to swallow, but it’s, it’s not for you, it’s for the attorneys, it would be for the attorneys to bring up. That would be a tough one, but it’s not yours.
Audience Question: What advice do you have for folks who have nervous or uncontrollable ticks? Like a client who has Tourette or Autism Spectrum Disorder? What do you do?
Deborah Johnson: Okay, a couple of things. One that will help a little bit, is to slow down a little bit. To tell them to slow down in their talking, and slow down in their answers. Sometimes, you know, breathing a little bit, will slow it down a bit. Tourette’s, that’s a neurological thing. The other thing I think is to work with them and the attorney to find a really nice way to say at the beginning, so if it’s deposition, you just say it at the beginning, “My client has Tourette’s, my client has whatever. And so, there are going to be some challenges or some difficulties.” If you’re on the stand, then during direct, the attorney is going to say, “Do you have Tourette’s?” “Yes,” “And how does that affect you?” Then they’re going to talk about it. So, you just lay it out for the jury, and, in the nicest way, and you want to practice that. So, they can talk about that. And part of that would be an emotional response, “And how does that make you feel, or does that bother you?” Or, you know, so you’re going to get, you’re going to take a couple of minutes to talk about that in front of the jury. So, the jury understands that you’re here testifying anyway. And so please be kind, be gentle as you work through your testimony.
Audience Question: How do you respond to opposing counsel if they ask you an open-ended question that is not necessarily direct? So, for example, “Provide this court with everything you remember about your interview with the victim,” it’s pretty broad and it’s pretty open-ended. I mean, what do you do?
Deborah Johnson: Well, the first thing that I would say is, “Could you be more specific,” and then see what they say? If it’s during deposition, it’s going to go on for a long time. If it’s during the trial, they only have a limited amount of time. Not to be nasty, but I would start at the beginning with the least interesting stuff and get into the minutia, and they’re going to call it quits. They’re going to say, “Okay, get me…” and then they’re going to want some specifics. So, they say, “Tell me everything you can remember.”Then, I would start saying, “Well, I remember that he walked up, and he was breathing kind of hard, he had on a blue shirt on and green pants, and one of his shoes was untied. And I asked him a question and he slowed down, he paused, he was looking up. I remember he kind of smelled like he had a hamburger at lunch and then he told me, blah, blah. And then there was a long pause, and I remember a car drove by…” Can you see this is going to irritate the bejesus out of the attorney? Well, he asks you a question, answer the question. Don’t be intransigent, don’t be snotty. Just say, “You asked me…” and they say, “Okay, okay. Tell me…” It’s like go fish, make them work for it. And don’t say, “Well, did you want me to say this or say that?” No. Just listen to it. . Answer that exact question. “You asked me to tell me everything.” You’re thinking to yourself I’m going to tell you everything if you want to sit here for an hour. I’ll sit here for an hour. You can use up your time. These days Courts are being very, very specific about how much time for trials. If the trial’s three days, you get this many minutes, and sometimes the court reporter or one of the people on the bench is literally counting the minutes. And when your minutes are done, you’re done. I don’t care if you’ve got three more people who need to testify. You’re done your case is over. You don’t get to call them up.
Audience Question: How do you balance making them work for it and not appearing difficult? So, in the example, like you used during the webinar, “Were you there on the 24th” and answering “No,” instead of, “No, I was there on the 25th?” Seems like it could be perceived as it possibly as a petty response. Will the jury understand the difference?
Deborah Johnson: It depends on your body language and tone of voice. So, it’s that non-verbal stuff. So, if you’re looking to be snarky, they’re going to get that. If the attorney says, “Well, where you there on the 24th?” And you say “No.” If you understand that language, you know that concept, and you just say “No.” “Didn’t you sign that contract?” “No.” “Are you in the elevator with him?” “No. I wasn’t in the elevator with him, I was with him in the hallway.” You don’t say that. “Well, when did you see him?” That’s a question we can answer. “I saw him in the hallway.” Now, the jury gets that you weren’t in the elevator. So, you’re just really calm, and you answer the question. So, again, it’s our body language thing, So, you kind of go through this testimony with your attorney and make sure that you’re being very calm and cooperative… Again, you’re not talking to the attorney, you’re talking to the jury. So, tell the jury, “No. I wasn’t in the elevator on the 24th.
Audience Question: Is it better to look at the attorney or at the jury when you’re answering these questions?
Deborah Johnson: You want to talk to your attorney about that. Every attorney is different about whether you look to the jury or you look to the attorney, or you look to the judge. So, sometimes the attorney will say, “Well, tell the jury, what happened that morning.” And then, you look to the jury, and you describe what happened, or “Tell the judge,” and you look up to the judge. And so, sometimes, when it’s your attorney, you’re going to look at your attorney and have this conversation with your attorney. When it’s opposing counsel, you don’t ever want to look away, like answer the question, and you’re looking at the ceiling or something. That just says that you’re uncomfortable. So, if you have to look over their shoulder, or look at their tie, and the jury can’t tell you, whether you’re looking here, looking here, are looking here. So, kind of work with your attorney. In different jurisdictions, the audience is different, the jury is going to be different. Sometimes they’re going to be really warm sometimes not. In New York City the jury is going to be very different than they are in Topeka, Kansas. So, work with your attorney and ask, “Where do you want me to look?”
Click Here to Watch a Recording of When Things Get Tough: Lessons for Courtroom Testimony.