Reasonable Doubt: How not to conduct yourself as a witness

October 4, 2018
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From NOW's Reasonable Doubt column: Supreme Court nominee Brett Kavanaugh's testimony before the Senate Judiciary Committee last week was a tutorial in how not to conduct yourself as a witness.

Good lawyers are experts at identifying credible witnesses, both to help coach their clients on giving evidence, and to spot weaknesses and lies in opposing witness testimony. What do we know about Kavanaugh and his testimony when considering the common and simple directions that lawyers give their clients before giving testimony?

Remain calm 

One of the first things I tell my clients not to be defensive. You will be asked more questions than you can imagine or think fair. You will be asked questions that may sound offensive. You will be asked dumb questions. Do not react.

It is normal to be defensive when someone accuses you of bad behavior. But in court, people who appear defensive or indignant look and sound like they have something to hide or are trying to distract you from asking important questions.

Simply put, the lawyer cross-examining you wins points when they make you defensive. You win points when you remain calm because it makes an aggressive lawyer seem rude, unfair or even cruel.

Kavanaugh was defensive and indignant throughout his testimony.

Theatre of the courtroom

Some people think that the way to demonstrate you've done nothing wrong is to react with anger at the suggestion you have. With testimony, that is completely wrong. Reacting with anger appears fabricated, like you are putting on a show.

Theatre in the courtroom is best done subtly – less is more.

Far from being calm, Kavanaugh seethed, shouted, and even growled at points. His anger came across as forced rather than a genuine emotional reaction.

Read more: Reasonable Doubt: How not to conduct yourself as a witness