Daniel I. Small, The Daily Record Newswire
Speeches. We love them. We hate them. We all give them.
To believe anything else is a dangerous fantasy, particularly for a witness. For many people from all walks of life who find themselves in a witness environment, moving from canned impersonal speeches to direct, meaningful communication is a very hard adjustment.
Speeches are easy to hide behind: more familiar and comforting, less revealing. Speaking directly to a stranger like Juror No. 6 is much harder, yet it is essential.
The Oxford Dictionary defines a “speech” as “a formal address or discourse delivered to an audience.” We tend to think of it in the stereotype: a prepared or memorized address to a large audience (politicians giving campaign speeches, or someone speaking to a big group).
However, that’s an unrealistically narrow view. Many of us commonly give prepared and/or canned addresses, short or long, to audiences of one, or many. Preachers preach, teachers teach, lawyers lecture, doctors diagnose, salespeople sell, managers motivate, politicians pontificate and so on.
In all of those instances, and many more, speeches can be useful. They give us some routine — a patterned way of responding or communicating that is easier and more comfortable than doing something new and personal every time.
Have you ever watched an interview or press conference in which a politician is asked a question and replies by delivering a short speech, which succeeds in avoiding the question?
For politicians, that is a sign of success: “Staying on message” is the oft-stated goal. For a witness, it can be a disaster. Juror No. 6 wants real answers, from real people, and is easily offended if he gets a canned speech that avoids the question.
Stepping away from well-travelled roles is not easy. As is often the case in witness preparation, the scene I’ve used to drive this point home, when needed, comes from an unexpected source: a cute little romantic comedy movie called “Notting Hill.”
Julia Roberts plays a famous movie star and Hugh Grant is a humble shopkeeper. They meet by chance and have a brief, rocky romance, but their roles get in the way. He is scared off by all her fame and success. She comes to his shop, asks if they can try again, and he reluctantly declines. Then she says the lines I want all witnesses who are used to playing roles, and making speeches, to consider:
“You know, the whole fame thing isn’t real. Really, I’m just a girl. Standing in front of a boy. Asking him to love her.”
We all play roles in life, we all give speeches of one sort or another. Those roles may be an important part of who the witness is, and we need to consider the best ways to talk about them. But giving speeches is not it. As a witness, you have to put aside those roles, and talk directly with — not at — Juror No. 6. You need to borrow from the movie to help him understand that: “Really, I’m just a normal person. Sitting in front of normal people. Asking them to believe him.”
Working to prepare a witness recently, we did a practice testimony that got a little heated. We had told the witness, as we do every witness, that the tougher and more realistic the dry run is, the more helpful it will be. And so it was here.
Every time things got tough, the witness would retreat to a familiar canned speech to try to explain. Each time he did that, I recited the line back to him: “Just a girl. Standing in front of a boy!” Slowly, it began to have an impact.
He began to answer from his heart, not just his head, to talk about who he really was, what he really thought.
I often hear lawyers tell witnesses to “talk to the jury.” I have to disagree — “the jury” is a blob, a crowd, and a lawyer saying talk to a crowd is often heard by the witness as telling him to give a speech or many speeches. Most people aren’t comfortable talking to a crowd, and those who are used to it are generally used to giving speeches.
Telling a witness to talk to Juror No. 6 is telling him to speak directly to an individual — ultimately, 12 individuals. To do that effectively, he has to be all the things that a speech is not: simple, slow, clear and real.
That is also the rhythm of being a witness: Question, pause, answer, stop. Tell your witness to:
• Make sure the question is clear and simple. A bad question too often leads to a bad answer.
• Take the time to think about it. Juror No. 6 understands that this is important.
• Give a direct, meaningful answer that Juror No. 6 will understand and appreciate.
• Stop. This is not a political debate in which you only have a few minutes to cram in as much speechmaking as possible. Let your answer settle in and wait for the next question.
In “Notting Hill,” the boy finally realizes that the girl is putting aside her roles to try to connect with him. He races to find her before she flies away, apologizes for not listening, and asks for another chance. She agrees, and they live happily ever after. Nothing is so easy or clear for witnesses. Still, to connect, they have to put aside many of the roles we all play in life, put aside the speeches we all give, and speak directly.
Tell your witness: Get off your pulpit, your stage, your high horse, and talk with people, as a real person. It can be so hard to do, but it is so necessary. These roles are not real. You’re just a normal person. Talking to another normal person. Asking him to listen — and to believe.
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Daniel I. Small is a partner in the Boston and Miami offices of Holland & Knight. A former federal prosecutor, he is the author of the American Bar Association’s “Preparing Witnesses” (4th Edition, 2014). He can be contacted at dan.small@hklaw.com.
