Always On

Always On


When you are called to go to court for your own case, or as a witness in somebody else’s case, hopefully your attorney or the attorney calling you has prepared you for your testimony. You should have some idea as to the questions he will ask, the answers you will give, the cross-examination topics of the other side, and how best to make your testimony clear, believable and truthful to the judge or jury who is hearing your evidence. What witnesses frequently fail to do, and attorneys neglect in their preparation, is the non-verbal communication the witnesses is giving the jury when they are not on the stand answering questions.  There are a few things for a witness to keep in mind as they sit in the courtroom waiting to be called so they don’t undermine their verbal testimony.

First, you should consider yourself always on. In the courtroom, in the courthouse, in the parking lot, at the downtown lunch counter, always assume there is a juror looking at you. In one case I tried, I won after what I thought was an exceptionally devastating cross-examination of the defendant. Thinking to pat myself on the back, after the trial I was interviewing jurors on my performance in trial. When I confidently asked about my withering cross-examination technique, I got a resounding “meh.” What really hurt the defendant’s testimony was the jurors seeing him laughing and carrying on in the parking lot at the end of a tough day of trial where the plaintiff had talked about her serious injuries. On another occasion, the juror turned on a defendant because he kept rolling his eyes and sighing throughout the plaintiff’s testimony. One juror gave the then timely reference to "Al Gore face."

Second, spinning off of the first point, dress with respect for the court. I saw one District Court judge look incredulously at a defendant on trial for marijuana possession wearing a Bob Marley T-shirt. I’ve been told by people more fashionable than I to dress “business casual.” I used to tell my clients to dress like they were going to church until a termite inspector showed up for court with a three-piece suit, cufflinks and a tie pin. I certainly don’t need my clients to be dressed better than I do. The jury might get confused on who the actual lawyer is.

Third, unless you are the party in the lawsuit, or a close relative there for moral support, don’t stick around and watch the trial. The longer you sit in the courtroom watching the proceedings, the more any appearance of being unbiased erodes away. 

Fourth, when you are testifying on the witness stand, look at the jury when you give answers longer than one or two words. They are the ones that need to hear your testimony and they are the ones that are going to judge your credibility.

Finally, tell the truth. This is as important in a non-verbal sense as it is in a verbal sense. Don’t manufacture tears, or make other big emotional productions. The jury will know you are faking your responses and will then take a short trip to assuming your verbal testimony is a lie as well.

–Bradley A. Coxe is a practicing attorney in Wilmington, NC with Hodges & Coxe PC who specializes in Personal Injury, Medical Malpractice, Homeowner's Associations, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678.

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