Even veteran private investigators get nervous when presenting evidence at trial. Remember: It’s a show, and your performance matters.
You’re on the witness stand in front of a hot, packed courtroom, being eyeballed by 12 people you don’t know and mad-dogged by an attorney whose sole mission in life is to make you look the fool.
You’ve sworn to tell “the truth, the whole truth and nothing but the truth so help you God.”
You’re sweating profusely in your suit, being strangled by the top button of your dress shirt, cursing yourself for not buying a new one since putting on 15 lbs.
It isn’t pretty, but it happens, even to the pros.
One of my subcontractors recently testified about a surveillance video that he obtained while working an insurance investigation for me. We’d worked the case for two years and collected about 18 hours of videotape, documenting just how uninjured this claimant/plaintiff really was.
Another investigator who had worked the case was also scheduled to testify. He was a rookie investigator, and it was his first trial. I advised him to watch the testimony of the other investigator, who had testified in dozens of trials, to get a feel for how he should project himself and answer when cross-examined.
To my horror, the experienced investigator began to exhibit signs of defensiveness when questioned by plaintiff’s counsel. Having testified many times and observed many trials, I knew if this guy didn’t change his evasive posture soon, he would hurt our case whether he was telling the truth or not. The plaintiff’s attorney, though not extraordinarily cunning, was doing a more than adequate job of making my honest and forthright investigator seem like a paid assassin, whose only job was to destroy the good name of his tragically disabled client. And the jury was watching intently.
Needless to say, I was becoming rather concerned about the jury’s final judgment of our evidence (no matter how devastating) and my investigator’s character.
The next witness was my young, inexperienced investigator. As the plaintiff’s attorney readied his attack, I whispered to the novice sitting beside me, “Whatever you do, don’t do it like that!”
To my astonishment, my never-set-foot-inside-a-court-room investigator gave one of the best and most sincere and compelling witness testimonies I have ever seen. As for the first investigator—I hold him responsible for many hundreds of gray hairs and the loss of many existing ones. He never worked for my company again. And I was forced to rethink how I prepare investigators to testify at trial.
A trial is little more than an adult-sized board game. The facts and evidence often play a secondary role to the skill of the players (See O.J. Simpson trial, 1995). It is essential that a witness project him- or herself to a jury in a professional manner…which means he must become skilled at playing his role in the Big Show.
Bottom line: You want to be liked by the jury. You want them to connect with you like a friend or family member. Most of all, you want them to believe you!
Remember, you are a professional. Dress professionally. That doesn’t always mean a suit, but it should never be less than a dress shirt, slacks and tie. A sport coat is advisable. Make sure your shirt is pressed and you can safely button the top button without cutting off the circulation to your brain. You’re going to need blood flow to answer questions, and passing out can be distracting. Make sure whatever you are wearing fits you.
If you’re looking a little shaggy, trial time is a great time to get your ears lowered (that’s what my granddad called a haircut, in case that wasn’t clear). Your face should be clean shaven, little or no facial hair, or trimmed very neatly. Little or no jewelry, but always a wedding ring if you are married (projects stability). Ladies should not try to gain the favor of male jury members by wearing short skirts or low cut blouses. You never know what a jury member’s beliefs are, so that could backfire.
You, as an investigator, are a collector and reporter of facts, nothing more. You are not a designated expert (probably) so your opinion has no place in testimony. Your answers should be short and to the point. If it is a yes or no question, give a yes or no answer. Do not voluntarily expound on your answers—additional information can be twisted or used against your creditability by opposing counsel. If the questioning attorney wants more information, he/she will ask for it. If your attorney client is questioning you, let him guide you down the path that he/she, as an experienced litigator, has chosen. During cross-examination by the opposing attorney, always wait a split second before answering to allow your client counsel to object if necessary.
Keep your voice steady and even. Deliver your answers calmly and with little inflection in your voice. Be especially aware of your tone/pitch at the end of a sentence. A rise in your voice can give the impression of doubt or defensiveness. As long as you are telling the truth, you have no reason to be unsure or defensive.
I can’t stress enough how important it is for you to project yourself as indifferent to the outcome of the trial. The opposing attorney will most likely ask you if you are being paid to testify. He/she will try and make it look like you have a financial interest in the verdict. If you did your job competently, your investigation will speak for itself and will be the reason for your continuing income. If your client’s case bombs, (s)he probably had a bad case to begin with, or the client counsel blew it. The textbook answer to whether you are being paid for your testimony is, “I am being reimbursed for my time”.
Sit up straight. Don’t fidget or swivel back and forth in your seat. Avoid tapping your foot so hard that it shakes your body. Even though inside you may feel like jumping out of your skin, you are only there to tell the truth, so there is no reason for you to be nervous.
For short answers, maintain eye contact with whoever is questioning you. If you’re asked to explain your answer, turn slightly toward the jury and address them, again making eye contact with each of them during your explanation. Looking down is a sign of evasiveness and will ultimately hurt your credibility.
Dig deep into your childhood memories of what your parents taught you about manners. Address everyone as “Sir” or “Ma’am.” Don’t refer to your subject as the man or lady, but as a gentleman or woman. Remember, you are not supposed to have personal interest in the outcome of the trial, so be friendly and courteous to everyone—no matter how they treat you. You can quickly turn a jury against an overly aggressive, rude and intimidating examiner by replying with unaffected grace. Always address the judge as “Your Honor” and say “good morning” or “good afternoon” when greeted by the judge or counsel.
What Not to Do
- Don’t lose your temper under any circumstances!
- Don’t get smart with the attorneys or the judge. For all intents and purposes, you are a simple servant of the court. You don’t have an opinion, and you surely don’t carry enough weight to turn wise guy without looking bad.
- Don’t let opposing counsel shake you by inferring that you are dishonest or untruthful. It’s his/her job.
- Don’t appear at court unprepared. Study your notes, reports and/or videotape the night before to make sure that you have all your facts straight. If possible, confer with your client counsel to make sure you are both on the same page.
- Don’t take your original case file into court with you unless your client requests it. Compile a brief outline of facts to remind you of pertinent times, dates and events to use on the stand. If you show up with your whole file, it can be entered into evidence and scrutinized to death.
- Don’t try to outsmart the attorneys or second-guess the questioning to adjust your answers accordingly. Wait for the question and answer it honestly.
The best way to become proficient at trial testimony is to practice. Ask an attorney client if he/she would mind working with you or your employees on mock trial testimony. Spend time answering questions and practicing what you have learned and then ask for feedback, positive and negative. If you really want to get it right, videotape yourself during the exercise. Then you can see what a jury would see and fine tune your projection skills.
Whether you are a seasoned veteran who has testified in hundreds of trials as an old timer PI or beat cop, or a new employee of a large firm, you should play every hand as though your ultimate destination will be in front of a jury of your peers. You have got to be ready to tell your story with the sincerity of a saint.
About the Author:
Michael Julian is the President/CEO of National Business Investigations, Inc. As a 2nd generation PI with nearly three decades in the private investigative and security industries, Mr. Julian currently serves as President of the California Association of Licensed Investigators and lobbies California legislators on behalf of the private investigation industry. He can be reached at firstname.lastname@example.org