Preparing To Testify at trial
“Hey dude, can you help me prepare to testify at trial,” a white collar defendant asked me earlier today.
“Have you been prepping with the United States Attorney and your lawyers,” I asked him.
“Yes, but I thought you might have some insights, too. I read your book and thought you could help. Can you?” he asked.
“Will you share them with me?” he asked.
“Yes, I would be happy to,” I told him.
I am not an attorney nor do I dispense legal advice. Certainly, United States Attorneys and white collar crime defense attorneys do an excellent job of preparing defendants to testify at trial. Still, I think there are some insights I can provide, even if some of the advice is redundant.
My advice comes from having worked with hundreds of white collar defendants since 2008. Many of my clients have testified and many had others testify against them.
Quick disclosure: This is by no means an exhaustive list. To discuss it in greater depth, please schedule a call with me.
There is no question that testifying (and even preparing to testify) can be a nervous experience.
To begin, you have to learn to deal with all of the prison parlance from others: you are a “snitch”, “rat”, or my favorite,”snitches get stitches.” Making matters worse one can testify without any assurances of how much it may help their sentence. And of course there is the reality that you are testifying against friends, colleagues and in come cases family. No fun. But if you have plead guilty and want the shortest federal prison sentence, testifying might be in your interest.
If you choose to testify you must be prepared. That is the purpose of this blog.
Over the years I have had defendants find my work after they testified. They told me what went well and what did not. In some cases, while on the stand they regretted arguing with the defense attorney while getting questioned. Never forget, that attorney will try to trip you up and make you look less credible. Own that fact!
It is hard to beat the attorney in an argument. You are not in a position to ask them questions: only they are. If they are rude and argumentative do not respond in kind…take the high road. You will appear more credible in front of the jury.
Okay, let’s do this…Here are 10 quick tips if you’re preparing to testify (disclosure: my advice comes being a federal prison consultant; I am not a lawyer)
#1: Look Like The Executive You Are!
Dress professionally. In fact, dress as if you are going on the most important interview of your life. In a way, you are.
#2: Own Your Mistakes
We are human! We all make mistakes. If you say something incorrectly while testifying, address it. Own it, then clarity. Do not continue to take the jury down the wrong road. Once the defense attorney catches the lie, they will crush you. Address it before they do.
#3: If You’re Preparing To Testify, Tell The Truth
Yes, I know this obvious, but it bears repeating. Do not forget you are being sworn in. You do not have an agenda when you testify other than to tell the truth. That is it. The jury will decide what to do with it. Embellishing and insinuating will only end badly. Just the facts please (the same holds true in a proffer)!
#4: Be Yourself!
If it is okay if you are nervous…you should be. If you tend to talk slowly, do not change. If you tend to speak more quickly, do so. You are speaking to the jury so you want to make sure they can clearly here you. Still, the more you are yourself the better you will do.
#5: Prepare slowly and steadily
In Lessons From Prison I wrote about the tortoise and the hare: you know…slow and steady wins the race. If you’re preparing to testify, take time each day to prepare, to imagine the questions you will be asked, and the rebuttals you will get from the defense attorney. The more you prepare the more organic your answers will be. You will not waste time trying to remember things that should come easily. Spend time each day preparing as if you’re on the stand–just like when I am on the driving range I hit shots as if I were on the course: focus.
#6: Remember you’re alone!
Years ago a client told me how the person on the stand always seemed to be looking at the U.S. Attorney for help in answering questions. The U.S. would turn away as if he did not see it. While up there you’re alone. Answer honestly, but do not expect help.
#7: If you’re preparing to testify, learn to speak in estimates
Years ago a client told me a story. The person on the witness stand was doing great. He was poised, confident and professional. He looked the jury in the eyes when he spoke and he seemed to master deference and humility. Then he went south, or rogue, as my client loved to say. He began to act to confident and almost take over the process. In so doing, he made errors with respect to dates. Instead of giving an approximate date, he gave specific dates–dates that turned out to be wrong. Well you know what happened, the defense attorney at him alive. Lesson? Unless you know the exact date, approximate please.
#8: Make sure you understand the question
My friend Sam loves to say, “I do not understand the question!” When someone hears that, they ask again. Be like Sam! If you are unsure what you are being asked, pause. Ask them to repeat it. Do not be pressured. Do not interrupt them. Let them finish, think for a moment, then get going.
#9: If you’re preparing to testify just remember the judge is the boss!
Probably not a good idea to speak over the judge! If the judge stops you, stop talking. When I was in prison at Taft Camp I heard a funny story. A prisoner in the chow hall said, “The judge stopped me and I said “your honor, sit back for a moment, I am almost done making my point!” It was so funny in the chow hall, but not in that courtroom.
#10: Avoiding absolutes when necessary
Just like you should never give a specific date if you are not sure, if you are preparing to testify do not speak in absolutes if you are not sure. In other words try to avoid using words like: absolutely and never. If the defense attorney has evidence that you are wrong, your position in front of the jury will be weakened.
Well, there they are: 10 Tips If You’re Preparing For Trial. Did I miss anything? Drop me a note if I did. I would love to learn from you.
P.S. My sentencing calculator is still available (wow that was a shameless plug to sell a product!)
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