Practice Development for Expert Witnesses
Beryl Vaughan, Consultant
Nationwide

Email go@forensicexpertpro.com or Call (415) 302-9589

Testifying Demeanor: What Are You Communicating to Attorneys and Jurors?

By Beryl Vaughan

Marisa Tomei testifies in the film My Cousin Vinny.

Testifying is scary at first.
There are no “naturals.” Only those who practice.
Take control over your testimony “demeanor” and perfect the whole package: visual, physical and articulated communication.

Presentation on the stand can reflect your “native” personality. If that isn’t the “confident, erudite and brilliantly insightful” naturally charismatic leader, then let’s figure out a solution to someone more human.

  • What is your “native” Personality? If it’s counterproductive, consider Cognitive Behavioral Therapy. Fear of public speaking or defensive posturing is real and tied to behavior. Testimony is a combination of know-how and behavior.
  • Aggressive? Back off.
  • Meek? Lean in and speak up.
  • Narcissistic? Look it up in the DSM5. A know-it-all turns juries off.
  • If you’re in therapy, talk over your personality presentation style with your therapist. If not, talk to your friends about tweaks you can make to the way you communicate the best parts of your personality.

Verbal Style

  • Speak loudly. Speak in a pitch loud enough to be heard by the jury but not more loudly than the attorney who has retained you.
  • Don’t take your cue from opposing counsel. It’s an old trick: ask the Expert a question in a hushed tone. It forces you to lean forward and ask for the question to be repeated. It can make you look confused or inattentive, even incompetent.
  • Measured speech. Speak more slowly than you do when you’re nervous.[1] Tip: Test it with a Zoom recording–set up a meeting with just yourself, record it and practice.  Nervous people tend to talk faster. Confident people have a slower style of speech. Ask others to review your recording and get feedback.
  • Get to the point. How long does it take you to get to the point? Are you answering the question that was asked?

Physical Style

How are you dressed? Do you use gestures? What is your body language?

Even the personality of your website and business behavior should be consistent with the professionalism you exhibit in the witness box.

What is the right body language?

  • Arms uncrossed.
  • Legs closed but not tightly. Tension in your legs will change your posture all the way up your body.
  • Sit straight. Not ramrod straight, but respectfully upright.

Tension suggests something is being hidden.

Relax your muscles. You don’t have anything to hide and aren’t tense, because there’s nothing to be tense about. Stay loose.

Don’t slump, listen to your mother. Sitting up straight says you are not afraid.  I mention posture more than once in this article. It serves different purposes. Let’s look at slumping, the opposite of good posture.

  • Head down, back curved and body closed inward, leaning your weight on an arm, these can communicate you are either indifferent or defensive. They say “I want to hide myself from you,” or “I have something to hide.”
  • “I have something to hide” could mean a different opinion than the one you are reporting in testimony. Or worse yet, it could be you are hiding facts the jury hasn’t heard.
  • “I don’t take this seriously.” Respect the jury–they are your “audience” and will expect you to talk to them, not down to them. It is tempting to direct your entire style of testifying to opposing counsel. Opposing counsel’s opinion is irrelevant!

Constructive Criticism from Attorneys

How do I remember what I was going to say on the stand?  I do a lot of “ummm” and “please ask the question again.” HELP.

    • Practice alone
    • Watch that Zoom selfie and take notes! Do it again.
    • When you’re ready: practice in person in front of a trusted and honest friend–invite criticism.
    • Practice again in a pre-trial conference with the attorney.

    You’ll need to practice less over time.

    What if opposing counsel gets aggressive in cross-examination?

    • Look at that constructive criticism above. Do you have a “tell” that you are nervous or uncertain? Work on removing or, if you must, suppressing it.
    • Make a script ahead of time that answers the most likely questions.
    • Script the questions that provoked your “tell.”
    • List every question you’d hate to answer and the most deflating answers.
    • Give short, truthful and defensible answers, delivered with appropriate inflection. Remember, there is room to clarify anything on redirect that feels damning. 

    You are asked:

  • “Doctor, I see you attended medical school in _____. Are you even qualified to practice medicine in the  United States?”

    Answer:

  • “I hold 2 Board-Certifications in ______________, and am licensed to practice medicine in [State where you are licensed]”.  (STOP THERE. Just be quiet.)

    On redirect, the attorney who retained you is given the opportunity to disable any dangling implications.

    Redirect questions:

    “Doctor, please describe what is necessary to achieve Board-Certification in X? Doctor, please also describe what is necessary to achieve Board-Certification in Y?”

    Your Answer:

  • “X years of study, X years of residency, a one year fellowship from _____ (school of Fellowship) obtained through a competitive selection process, and passing the American Board of Psychiatry and Neurology examination. I was awarded Board-Certification in ____ (year) and have been a practicing physician for ___ years”

    Many attorneys, by the way, don’t realize that you have been a physician for far longer than your Board-Certification, thus you may have 10 years under your belt as a physician yet just finished your Boards in a second subspecialty last year.

 

  • The higher the stakes, the more opposing counsel will study your buttons.

    If you have big “buttons” you can’t control, see above: consider Cognitive Behavioral Therapy (CBT.) Seriously.

    Everyone has something that sets them off.
    Everyone.
    In testimony you need to compartmentalize that trigger. If you lose your temper or become sarcastic on the stand, you erase the benefit of your opinions, even if they are well thought-out, objective and bullet-proof.

    As a treater, you know better than anyone how relationships play out if someone is an apologist, passive-aggressive, narcissistic, or inclined to commit boundary violations (Too Much Information is real.)

    Your professional interactions are no different.

    What do others report you convey and why? Parsing the Feedback 
    • Humorous? Appropriate and successful (jury members genuinely laugh)? Inappropriate and off-putting?
    • Trustworthy?
    • Likeable?*
    • Charismatic?
    • Approachable?
    • Warm?
    • Repulsive?
    • Patronizing?  The worst offender because the expert witness is already in the mix because they’re ‘more knowledgeable’ than others.
    *”The likeability of the expert witnesses was found to be significantly related to the jurors’ perception of their trustworthiness, but not to their displays of confidence or knowledge or to the mock jurors’ sentencing decisions.” Brodsky SL, Neal TM, Cramer RJ, Ziemke MH. Credibility in the courtroom: how likeable should an expert witness be?. J Am Acad Psychiatry Law. 2009;37(4):525-532.
    *FYI, sorry UK readers; I use the US spelling..

    Take your measure – institute changes – reassess your performance. Grow. Get Better.

    How should I dress in Court?  Is Wardrobe Relevant? Yes.

    A “guru” in the field of forensic psychiatry gives this advice to the Expert Witness (‘m not identifying the doctor because he has not published on this topic, only shares considerable experience):

    For both men and women:

    • Suit
    • Pressed
    • Good fit

    Women:

    Always a skirt (his controversial “rule”)

    Low heels, closed-toe shoes

    Never sexy–no cleavage, clingy fabrics, short skirts.

    Men

    Tie
    Well fitting suit. Buy it where there’s a tailor. Your pants and jacket cuffs should fit your height. Stay with dark fabrics, black or navy.

    He makes no comment about footwear or “sexy.” 

Gender Gap: “Clothes Make the Man” and How About Women?

About Skirts and Heels

In a lively conference seminar, this “guru” was clearly giving advice everyone had already heard from him. Friends and colleagues knew what he was going to say and there were more than a few (fond) groans.

Women spoke up.  Skirts and heels were outdated, said many. Here’s my take.

Is it true or sexist? 

If juries and judges care, then I’d say it’s sexism but that’s a much more complicated conversation.

There’s no peer-reviewed research about jury response to an Expert Witness’ clothing.

I found so much speculation and  observation-based opinion that I cannot report it with authority.  So here’s my own speculation.

A skirt and flats is casual dress. If you’re going to wear a skirt, wear heels to visually state you are present in your capacity as a professional. Dress like it’s a job interview because you know what?

Testimony is a kind of job interview: you are explaining why you speak with authority, you are reliable and knowledgeable.

If you’re wearing a pant suit, adding heels is your call. You might consider your height. If you think there is a reason to appear taller, wear heels.  Think you’re too tall? Then go flat. I am not sure heels matter.

The Expert sits about 12′ from the Jury. To enter the witness box they are several feet nearer. Visually, as a person approaches they become larger.

Once you’re seated, who can tell? Posture is more important than heels.

Do skirts or pantsuits matter for a female Expert Witness? 

Leave a comment below or send me an email and I’ll update the article with your comments.

Marisa Tomei testifies in the film My Cousin Vinny.

Sexy clothing, a strong New Yawk accent in a Court in the deep south and losing her temper almost lost the jury. Concise, confident delivery of facts only an Expert can know ultimately made the case.

I took my own advice! I recorded myself on Zoom. Here’s what I learned:

1. My voice is a little on the high side for “easy listening.” I’m going to practice modulation.

2.  “Floating head” effect. My favorite black turtleneck, against a black chair…

3. I use “ummm” too often.

4. When something interested me, I said it over and over. I only needed to say it once (or twice).

I’ll keep you posted on my own journey to a better presentation.

Digital Dress
What Does Your Website Say About You: Demeanor in Text and Images

In case you’re confused: the above image does NOT belong on your professional website.

A website is a multi-media job interview.

  • graphics and photographs are powerful communicators, for good or ill.  But they’re necessary to lighten the load of non-stop textThat’s why I included the image above. Weren’t you getting tired of words??
  • The tenor of writing on your site gives attorneys a test run of what they can expect in your reports and even testimony.  It’s worth your effort to get that right. I copy-edit content for my clients and I have yet to see writing that’s perfect straight out of the box.
  • Audio-visual content is an even more influential message about what your testimony might look like. When that’s a strength, communicate it up front.
Demeanor applies to both you and your business.

Getting this right is so important that I’ve addressed it in its own article Building a Reputation for Fair-Dealing, Integrity and Goodwill.

In brief, thoroughness, as a trait in forensic practice, includes being well-organized, transparent, easy to understand in how you track records, bill your time, convey the terms of your retention and fees.

Let’s together take a look at your strengths, identify room for improvement with a plan for solutions, and transmit what’s best about you, on the web and in person.

[1] Do You Talk Too Fast? How to Slow Down. Ni, Psychology Today, Nov. 2019.

May be of interest: How Body Language Can Impact Witness Credibility, Cook and Pitera, Litigation Insights. 2018

0 Comments

I’ve always loved The Little Prince* I recall the drawing of a boa constrictor that’s eaten an elephant. The Little Prince says “I showed my masterpiece to the grown-ups, and asked them whether the drawing frightened them. But they answered: “Frighten? Why should anyone be frightened by a hat?” What do people see in you?

The Little Prince

* Saint-Exupéry, A. D., & Woods, K. (2009). The little prince. London: Egmont.

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