Get Into Your Trial Stance

Horowitz (black trunks) v. Maloof (blue/gold trunks), Ithaca, New York

Trials require your lawyer to present a set of facts, a story really, to a group of strangers (judges and juries). The strength of your presentation will determine whether those strangers rule in your favor. Since most facts presented at trial are in the form of live testimony, the witnesses chosen to testify must be clear, conversational and truthful. Most importantly, they must come across in a sincere and compelling manner. This is a tall order, and one that is not lost on witnesses, so it is only natural for witnesses to be nervous and/or easily confused while testifying.

One key to my success at trial is that I spend significant time preparing my witnesses to testify. One of my preparation techniques is to help witnesses find their “stance” in the story, and show them how to return to that “stance” if they feel lost or confused on the witness stand. By way of analogy, professional golfers work long and hard to perfect a stance and swing, that “repeat” themselves time after time, no matter the pressure the golfer might feel at the moment. They become part of the golfer’s muscle memory.

Likewise, each witness should enter the witness box with a “stance” they’ve absorbed and practiced during their preparation, and that they can confidently return to should they become lost or confused while testifying. Often, the witness’s stance is a one-sentence statement of the key point the witness is trying to convey. This approach is particularly powerful with a jury, since the witness repeats, for the jury, the key point(s) he/she testified to on direct exam.

For instance, if the key issue is whether the witness agreed to a particular contract term, and the witness denied any such agreement during his/her direct testimony, the witness’s “stance” should be a simple statement of the most compelling reason why the witness did not agree to the particular contract term, such as “all I know is we never even discussed the item he says I agreed to.”

Golfers spend relentless amounts of time perfecting and honing their “stance”, and witnesses should likewise be prepared to practice.

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