Barbara J. Thomas
1. SEVEN TYPES OF FEAR
SLUGGISHNESS – Being unenthusiastic abut present and immediate prospects, including the
need to avoid the toxic heat of humiliation.
FRIGHT – Causes paleness, trembling and chattering teethe, weak knees, dry mouth.
TIMIDITY – Fear of approaching evil or physical or emotional pain which you anticipate, in the
CONSTERNATION – Fear of having your mental or emotional balance dysfunction and the
CONFUSION – Fear of paralyzing thought. Paradox. No clear resolution. High Risk.
FAINTHEARTEDNESS – Lasting fear that is not reduced by reason.
PUSILLANIMITY – Reliving recent frights.
2. MEMORY IS MALLEABLE AND MAGICAL
The content of memory (what happened) and the meaning of the memory (how it felt) are laid
down in separate tracks of the brain, splitting each memory. Under stress, the tracks of these
memories may get out of synch.
A challenge to your memory can be so ego-threatening it stimulates survival reactions and the
tension is directed into your sentences which can become juiced with exaggeration
According to “Psychology Today”, “The one thing we can say for certain is this: if memory is
the bedrock of the self, then even though that self may seem coherent and unchanging, it is built
on shifting sands.”
Curb the tendency to say just anything that comes to mind as a response, for it’s natural to
exaggerate when stressed.
3. FACTS – KNOW THE DIFFERENCE
Real Fact: a real deed or a proven concept, circumstances of a case that are actual occurrences,
determined by the evidence. Hypotheses, theories and guesses are not facts.
Material Fact: a fact that would influence a reasonable person in making a decision.
Collateral Fact: facts with no direct relation to or relevant bearing on the case or matter in
question and the question before you. Identify and delete collateral facts from your testimony,
even if you’re dying to say them. The idea is to answer a question with the least possible
Evidentiary Fact: part of the situation from which a case arises: (i.e., did it happen or not as
established b testimony or other facts, evidence and findings).
Ultimate Fact: a conclusion of law or especially a mixture of fact and law which determines
issues in a case and that is established by evidentiary facts.
4. CREDIBILITY – HYDRATE THYSELF
Drink plenty of water. When skin and tissue lack enough moisture, lips stick to the gums and the
facial muscles are too dry to flex with a natural smile.
There’s little twinkle or warmth in dry eyes. They need water to translate your intent.
In the days and hours before testifying be sure to drink plenty of water, but not just before you go
on the stand. It takes time for the water to circulate and you don’t want to be needing a break.
When dehydrated: You may give the false impression of lying because your eyes don’t twinkle
and lack warmth. You blink or stare too much and lick your lips or your smile sticks to your
gums and it looks like you’re wearing a mask.
5. VENTING – BEING TOO EMOTIONAL
When you vent, yammer, ramble, purge demons and just tell-it-like-it-is, you do so at the
perilous risk of making yourself and the case vulnerable to the opposition.
You may stray into exaggeration, little white lies of embellished memory, insert insult into your
response, quantify, speculate, and or be unconsciously or deliberately deceptive.
Court should almost always be like the volley of a tennis match where questions are like the
serve across and the answer is like the return volley. Question/Answer.
In tennis you don’t get to hit the ball over and over and then slam it. When testifying, neither
does one get to answer the question all kinds of ways with all kinds of emotion or hidden
agendas like insulting someone unnecessarily from the stand.
Venting or being over-emotional may feel like a right to the witness, but long winded answers
and tirades exposes facts, exposes strategy and credibility is lost by distraction.
6. HOW TO STAY CALM UNDER PRESSURE
- maintain power through behavior
- count to three or longer before you answer questions.
You have the right to do this.
- responses should be accurate, not rapid
- listen to questions but don’t feel the injected suggestions,
spin, insult and innuendo embedded in the question
For example, the attorney says:
“So there you were just hanging out with your best friends the bookie, the fence and the thief,
why didn’t you just leave before things got out of hand? Loyalty?”
This is a question that implies to the court that you’re a low-life and so are the people you know.
It might be hard not to get angry or upset and defensive by the innuendo. The idea is to ‘listen to
the question’, not the ‘spin’ put on it. So the question here is simply “why didn’t you leave?”
Focus on the question, just the question. Listen to the spin with curiosity to see how far the
attorney will go to spin his side by putting your side down. It is to deliberately rattle you. You
listen for the needle in the haystack, listen for the question, just the one question before you, the
one question being asked.
- think of pressure in the question answer dynamic like a game of dodge ball
- you don’t have to take the direct hit of negative innuendos
- you just listen for the question and make the bad impressions powerless words
- when you get upset, force a smile
- a smiles says, “I know what you’re trying to do, but it won’t work.”
- if you get pressured into being truly upset, ask for a break
7. COUNTER-EMPATHY ~ A PLOY
When people use all mitigating stories, secrets, confidences, wound, circumstances and self-
disclosure of a person or situation to belittle them, they actually do so as an outlet for their own
repressed fears and anger. This ploy is aggressive and hostile. It aims to control and limit your
confidence and choices.
Everything said in confidence comes back to cause you pain, anger, humiliation and
embarrassment, as puns, jokes, innuendo or accusation.
In court, opposing counsel uses counter-empathy or anything you reveal as leverage against your
side and as a ploy to win his case.
Answer with the bare bones and use composure to tolerate the ploy.
8. THE POWER OF WORD FALLACIES
ILLEGITIMATE TOTALITY TRANSFER: the unjustified inclusion of all the possible
meanings of a word regardless of the limitations of the context.
HUMPTY-DUMPTY EFFECT: words mean only what an attorney wants them to mean,
These fallacies are two good reasons to avoid adjectives, adverbs, theories, speculation, guesses,
metaphors, innuendo, exaggeration and quantifying.
Attorneys take advantage of careless testimony by using word fallacies to put a spin on what you
A PRIMARY emotion is what we feel immediately, when stimulated:
- ANGER - JOY - LOVE - HATE - FEAR - FLIGHT -
A secondary emotion comes next, as reason and experience inject their influence on our
psychological and physiological responses.
- UNDERSTANDING - RELIEF - PATIENCE - HOSTILITY -
- AGGRESSION - HUMOR - ANGST -
PRIMARY EMOTIONS will do-you-in on the stand. Whatever you feel, feel it, contain it, let it
pass, and it will pass if it is anger, joy, love, hate, fear or flight. If you count to three before
responding to any question that triggers a primary emotion, your answer will include
understanding, relief, patience or humor. If you react to a triggered primary emotion, your
answer, even a humorous one will be from hostility, aggression or angst.
Take your time before you answer. You are not docked for keeping your poise and silently
counting to three before engaging your mouth. Delaying longer than a count to three is not
advised. One thousand one. One thousand two. One thousand three. Now speak. Some
questions are rote, so answer those quickly, but when the question is surrounded by spin, always,
always, count to three before answering so you are coming from the SECONDARY
EMOTIONS, not PRIMARY EMOTIONS.
10. CREDIBILITY AND PERCEPTION
If people don’t believe what you say, nothing else really matters.
A person who’s trying to be liked instead of respected comes across as insincere, phony and not-
Testifying is not a popularity contest of an opportunity to schmooze or kiss-up.
Tell the simple truth even if it means that you will wrankle the feeling of someone you’d rather
not upset or want to impress.
Truth is in the vibration of your voice and you body’s posture when you make an effort to just
answer the question without any other motivation.
When compliments or insult are embedded in an answer, the truth is diluted because people hear
a motivation and it distracts them. They hear anger, cloying, hedging, power-tripping, revenge,
or even kissing-up and flattery, not what you say. What you say gets lost. Don’t let your
motivation over-power your testimony.
When compliments or insults are embedded in your answer, the truth is diluted because people
will ‘hear’ your motivation and it distracts them from what you say, from the truth.
You may be asked to explain a choice. For example, “So you were just hanging with Shifty.
You know he’s trouble. Why didn’t you leave?” Be careful. Explaining a choice is more than
explaining a fact even though it could be a fact that you made a certain choice. The idea here is
to make that choice a possibility, to take events back to an imaginary moment of possibility in
order to frame you as good or bad. A question about your choice makes you speak to
motivation, to undo a moment and the consequences thereof, to go back and explain basically
why you were such an idiot or hero. The trick is on the gallery, jury and judge. Once the
attorney moves their mind back to the moment of possibility, a moment before the choice you
made, whatever in fact you did or are being accused of doing is a possibility. It hasn’t happened.
People perceive from that vantage what choice is alleged or actual as a good or bad choice
making you either a good or bad guy in general.
Most of us have no idea why we do what we do when we do it, especially in a stressful paradox
where there seems to be a no-win result. Attorneys take advantage of this fundamental,
psychological blind spot. Mental health professionals get paid beaucoup bucks to ascertain
motivation, so how can you be expected to explain a choice, especially about yourself unless you
are certain? When you answer questions about choices always begin your testimony with, “At
that moment, I was hateful, true but there are so many things contributing to this moment, like
my concern that somebody had to do something to stop it, but it got out of hand, so it’s hard to
say what my motive was exactly. I’m not a psychiatrist.” This answer says that for the most part
you are not criminal in general or harboring resentment in particular, looking for an outlet for
your aggression but that you as a human, admit for the moment, you were not-thinking but
12. RULES OF INFERENCE
An inference is a FACT reasonably implied by another FACT which is a good reason to know
which of the five types of FACTS you are working with. The rule of inference asserts a logical
consequence of A + B = C.
However, the rule of inference applies differently to the logical consequences of premises,
opinions, speculations and theories. Because premises, opinions, speculations and theories are
NOT FACTS, the rule of inference can only be plus or minus A, + plus or minus B = plus or
minus C: +/- (A) + +/- (B) = +/- (C). When people are not talking about FACTS and they
follow the basic rule of inference, remember unless they are using FACTS as inferences, their
conclusions are spun opinions, premises, speculations, NOT THE FACTUAL TRUTH. At best
the inferences are plus or minus the TRUTH, not in fact, a fact worth getting upset about.
Most of what people say is anything but absolute, so rather than get defensive, hurt or otherwise
shoved around by what you hear, remember, it’s all relative and each person in the courtroom
will interpret the values of + and - and the =’s.
Use this concept to practice emotional and defensive detachment.
13. TRAPS ~ A SUMMARY
- Lies Lies Lies
- Contentious Questions
- Awkward Silences
- Know When to Hold ‘Em
- This is Not a Coffee Break
- Not Knowing v. Not Being Sure
- Credible Testimony
- Avoid Saying
- Volunteering Information
- Ambiguous Questions
- Compound Questions
14. TRAPS - LIES LIES LIES
Listen-up. When the attorney quotes a person or mentions information while setting up his
question to you and you hear a lie in that set-up, DON’T CALL SOMEBODY A LIAR.
Count to three to get past the PRIMARY EMOTION of anger. Instead of calling somebody a
liar, say, “I believe you are mistaken on a point in the question.” State it calmly. State it as an
opinion, not a fact.
When you do this, you put the counselor on the spot and interrupt his pacing. Wait for him to
ask why you think they are mistaken or to clarify your recollection.
Recollection is the key word, not memory. Don’t say, “That’s not how I remember it.” Use the
word ‘recollection’. Memory implies something more solid than a recollection. You want to
avoid starting a conflict of one person’s word over the other. You just want to mention that from
what you recall the quote or incident was different.
Begin your response with “I’d like to clarify that with my recollection”, then pause.
The counselor will have to wonder how whatever you might say will bear upon his strategy. Be
poised. Sit quietly. Let the tension sit on the attorney.
At this point he HAS to ask you a question he didn’t anticipate. Depending on how he
anticipates the impact of your clarification, the counselor will say, “Go on or please clarify your
recollection”, or sensing trouble, he’ll go on to the next question. It’s a paradox for him. If you
clarify, what will you say that can muck it up for him? If he doesn’t ask you to clarify, it’s
almost admitting that there’s something amiss in the set-up (a lie).
Don’t worry if he goes on to the next question. That lie is only temporary. Your attorney will go
back and offer you the chance to clarify this on direct or redirect examination, so just let the lie
go for the time being if the counselor decides to go to the next question.
15. CONTENTIOUS YES OR NO QUESTIONS
Sometimes you get a yes or no question in which you are damned either way.
- If you anticipate that your simple yes or no response needs an explanation or
- If you anticipate your testimony will be interrupted by the opposing counselor
before you can finish so he won’t stray into what he wants to avoid
YOUR RESPONSE should be:
- I’ll need to explain my answer but generally the answer would be (Answer with) Yes or
No and then ask the court, “May I go off the record and speak to my attorney in private?”
You have this right. Don’t be afraid to delay the proceedings in this situation.
- Consult with your attorney about how to answer the question and sound-out your
explanation on him. Do what the attorney says.
- The opposing counsel will repeat the yes or no question or ask you to explain. If your
attorney said go ahead and explain, your response to the contentious yes or no question is
a question. Say, “The dilemma of answering yes or no to that question is a quandary
between two bad perceptions.” Then, explain yourself in as few words as possible,
leaving out adverbs, hype, unnecessary details and all other frills that can lead to trouble.
16. AWKWARD SILENCES
In court, sometimes silences are orchestrated. The opposing counsel will make you feel that
your answer is inadequate by PAUSING as if you are lacking. You will respond by saying more
(Blurting), often at your peril. Know when you’ve answered the question and shut-up. If you
haven’t answered, wait until the attorney rephrases the question.
Resist the temptation to spill the beans, quantify, qualify or back peddle by reanswering or
explaining your answer. That’s the ploy of orchestrated silence. The opposing counselor is
anticipating that you will not be able to maintain your poise in a thundering vacuous silence and
then blab some stuff he can spin into trouble.
Don’t get rattled when it gets quiet for an extended sequence of seconds that seem eternal.
Count. One thousand one, one thousand two, one thousand three, and let your last testimony
ride. It’s not easy to do this unless you are aware that it’s a ploy to get your tongue-wagging
Don’t try to HELP the opposing counselor by breaking it down again. If you’ve answered, no
matter how silence makes it loom, shut-up. Don’t care if the courtroom thinks the village idiot
must be smarter.
17. TRAPS - QUANTIFYING
- avoid quantifying, that is using exact times, distances, or any terms of measurement
unless you state that it is a guestimate or you have the FACTS.
- this will be tricky. You will tend to repeat a spiel as you would in conversation
- make an effort to speak about what can be quantified slowly to delete these
elements from your testimony:
- sizes of crowds
If it can be quantified and you take a guess, you are leaving yourself open to credibility issues
unless you clarify in you testimony that you are speaking in approximates, not absolutes.
18. KNOW WHEN TO HOLD ‘EM
Rather, know what to hold:
- don’t respond to a question with a list of solutions
- don’t be goaded by a belittling into emotional testimony
Count: one thousand one one thousand two one thousand three so that you answer from
- trust your instincts
- if you’re a person who reacts with mood swings, the best way to avoid the damage that
can do is to create a false sense of poise and count to three a lot or you can try to just
pretend to be a snob and create an appropriate detached aloofness
Don’t worry about:
- what others are thinking about what you didn’t want to reveal
- if others are convinced or not about what you just said
- if you feel shame, humiliation or that your future is threatened
- detach yourself, let it go
- whether the time will come when you get to correct the record
- don’t start into a wild explanation with no question open
- see Staying Calm Under Pressure
19. TRAPS - THIS IS NOT A COFFEE BREAK
- Testimony is not a friendly chat. The attitude that all you need to do is just go on the
stand and say what comes to mind about the truth is naïve. You need to examine your
narrative and prepare.
- Don’t slip into regaling, story-telling and entertaining testimony, embellished to keep the
audiences interest or to get attention. Less is more when you testify.
- Challenge yourself to keep every answer as short as possible and only answer the
- setting it up
- using metaphors
- impressing with your smarts
- Answer in the way a simple sentence is constructed: subject + verb + object.
- Leave out all the adverbs and adjectives: words that describe, words that paint pictures,
metaphors and comparisons.
- Flippant, casual testimony tossed out as if in a simple conversation can easily be the
testimony that sinks a case.
20. PROVIDING BACKGROUND – A CAUTIONARY CONSIDERATION
- Ask yourself, “Are these details necessary or not? Am I providing essential data or
adding fluff and stuff to be impressive, provocative, entertaining or right for right’s sake.
- Ask yourself, “Am I long-winded because it’s necessary or do I love the attention?”
- Attorneys are paid by the hour, so don’t rely on them to curb your motor mouth.
- Elaborating or elucidating or going into quaint detail to ‘paint a picture’ or evoke certain
emotions can open doors of inconsistencies that benefit the opposition’s strategy.
21. TRAPS - NOT BEING SURE VS. NOT KNOWING
If you are unable to answer a question put before you because you don’t know the answer or are
not sure avoid saying:
- “I don’t know.”
- “That’s all I know.”
The best response, and practice this because you may need to say it often:
- “That’s all I recall at this moment.”
That’s what you say when you don’t know or aren’t sure if what you know is true.
If the attorney keeps asking and pressing for an answer, just keep repeating “That’s all I recall at
You do this because at sometime later the answer might occur to you and you are sure.
Don’t answer just to answer. If you don’t know, don’t put something on the record that is iffy,
hazy or dimly recalled.
When you say, “That’s all I recall at this moment”, you leave an opening on the record instead of
creating a record that is an answer you spurted just to answer the attorney or get out from under
If the counselor continues to keep pressing on this issue, and you continue to say calmly, “That’s
all I recall at this time”, your attorney will say, “Objection. Badgering the witness.”
The important thing to remember is that you are allowed to push back or hold off a line of
questions that intends to put words in your mouth. The way you ‘refuse’ to answer is to respond
over and over with, “That’s all I recall at this moment.”
22. TRAPS - CREDIBLE TESTIMONY
“Credibility: Whether testimony is worthy of belief based on competence of the witness and the
likelihood that it is true. Unless the testimony is contrary to other known facts or it’s extremely
unlikely based on human experience, the test of credibility is purely subjective.” –
Subjective: each person decides credibility within their own mind rather than from external
influences. You can’t win-over everyone, so rather than try to answer with that goal, just keep it
simple. People will think and believe what they chose.
If you try too hard to convince people or broaden a response to include everyone, you may seem
skeptical to a few or many.
23. TRAPS- INTIMIDATION
The opposing counsel wants to rattle you. He tries real hard to do that. Don’t react to the tone of
his voice, his insinuating remarks, gestures, facial expressions or orchestrated silences.
Keep your ears on the question and only the question like you were at bat in a game of baseball.
The attorney may wind up and wind up, however, what ever the wind up or spin, your only
concern is the question before you. Not what was said a moment ago. Not what was said five
minutes ago. Focus on the question that will be directed at you and answer it in as few words as
possible to answer it fully.
Opposing counsel will in the course of setting up a question broadcast that you are:
- in it for the money - deficient
- needy - dependent
- weak - slow-witted
- susceptible to influence - manipulated
- a victim - seeking attention
Once intimidated or defensive you will start blabbing to alleviate discomfort in your emotions
and body. DO NOT BE GOADED. This is just what the ploy intends to have of you, a blurt of
random relevant or irrelevant details that can be used to trip you up.
Some questions are set-up as fishing expeditions. He’s rattling you so you will elaborate
defensively and have you say something, anything that he can use against your side. Stay calm.
One one thousand, two one thousand, three one thousand.
24. TRAPS - AVOID SAYING
There are everyday, conversational phrases that you need to lose when answering in testimony.
Don’t begin your answers with any of these phrases:
~ “I think…”
~ “I guess…”
~ “To tell you the truth…”
~ “You won’t believe this but…”
~ “They say that…”
~ “I heard that…”
How often do you qualify what you say in conversation using these kinds of phrases? Most
people use them frequently and these phrases will just dilute your credibility in court. Commit
these to memory and every time these phrases try to come out of your mouth, stop before they
start. Believe me this is one set of don’ts that matter.
If you use these phrases, it doesn’t matter what follows, opposing counsel will zero-in on it and
turn your relevant response into a guess or a fabrication. This little gambit is another great
reason to count one thousand one one thousand two one thousand three before answering.
25. TRAPS - OBJECTION!
When you hear OBJECTION! Shut-up, immediately.
Don’t hurry up and finish what you were saying no matter how much you want to finish having
Your attorney is protecting you and the case. Slam on the brakes. Cease mid-word.
He senses that you are about to reveal something that seems innocuous and knows it’s not-
necessary for you to reveal in order to answer the question fully BUT it is something that the
opposing counsel will leverage now or in the future to the detriment of the case.
Opposing council may be badgering you. Your attorney will OBJECT.
Whenever you hear OBJECTION, don’t even finish the word you’re speaking. Trust your
attorney. He knows when to OBJECT!
The judge will make a ruling. Sit quietly and do as the judge instructs.
26. TRAPS - EXAGGERATION
Exaggerate: to embellish, elaborate, to overstate or suggest that an event, incident memory or
fact is altered for whatever purpose.
Exaggerations wind up sounding like a lie. They hurt all of your testimony. Once you’ve
answered fully, opposing counsel who has radar for exaggerations will attack it until he’s taken a
chunk of your credibility.
This trap is especially present in any experience that you have told as a story to your friends over
and over. See CONFABULATION.
In court it’s imperative to be exact so make a list of ‘stories’, pat little narratives all edited into a
smooth beginning, middle and end that ‘illustrates’ your experience instead of keeping to the
facts, just the true facts.
Identify parts of your testimony that are not truly accurate and practice telling the facts of the
story without the embellishments.
27. TRAPS - VOLUNTEERING INFORMATION
To avoid compound questions, typically the questions in court are simple and parsed so that the
process can be tedious and often annoying. Don’t anticipate what or where the opposing counsel
is going and skip to the end to answer the obvious and hasten the process.
Listen to the question, not anything insinuated or implied by the question.
Answer the question in as few words as possible and shut-up.
Anything extra that you volunteer in your answer that’s not necessary to the answer is on the
record and can be used against you. Here’s an example. You are testifying in a case against a
river rafting company by a friend who was injured on a trip. The attorney asks you were you at
the place? You say, “Oh, sure. That was the day I caught a 16 pound fish.” The stuff about the
fish is unnecessary. Just answer ‘yes’ and wait for the next question. Sometime later the
attorney may ask, “Did anything significant happen that morning, before rafting?” And if you
say, “Oh, sure. I caught a 14 pound fish.” You’ve been inconsistent about the weight of your
fish. Your credibility takes a dive. Anything relevant that you can testify to regarding the
accident is diminished.
No matter how small, no matter how slow and tedious the process of being questioned, just
answer the question. Don’t say anything more than you have to.
28. TRAPS - AMBIGUOUS QUESTIONS
Remember when you’re on the stand the rule is YOU are in control, not the judge, the court, the
jury or the attorneys.
Within reason, you can take all the time you need before responding.
Do take your tie, because what you say on the stand goes on the record and transcripts forever.
If the question seems vague and you have to chose from several questions in one, ask to have the
Ask for a moment and take it. Don’t worry about looking stupid or dubious. Better to find the
right words than blurt out and be sorry or to venture out tentatively with the phrases to avoid
saying: “I guess…”; “Perhaps…” “I heard them say…” “Everybody knows…”
29. TRAPS - COMPOUND QUESTIONS
Make testifying sporty. If the question is links the word “AND” and the word “BECAUSE”, or
links ‘IF’s and THEN’s” then ask the counselor to rephrase the question even if it seems
innocent enough to answer.
Compound questions are set-ups in which the counselor frames a question so that your answer
can later be leveraged against you by an inference buried in the compound question.
Compound questions using and/because and if/then are prohibited and attorneys know how to
ask questions without linking them with if/thens’s and and and/because. Keep your ears on any
question that goes on and on and uses these links.
Even if the compound question makes sense, your response should be “Please rephrase the
Make the attorney ask you little questions, parsed questions. Don’t fall for any of the questions
that follow long set-ups.
A compound question is risky for attorneys because there are many places you can begin your
answer and when you don’t answer right, don’t be surprised if you are cut-off.
You might be surprised to learn that when you are cut-off while you’re answering the question,
it’s okay to talk over the attorney talking over you.
You are supposed to finish answering one question before he can ask you the next. When this
doesn’t happen, and the counselor fires off another question, your response is, “May I finish the
answer you just interrupted?” He can’t say no. You will be prompted to finish answering your
last question and you should. If you’ve been cut-off, the attorney senses you are straying into
testimony that won’t help him win.
30 TRAPS – DOUBLE-NEGATIVES
“They did not not do it.”
“They won’t tell no lies.”
“You aren’t kidding.”
“You ain’t seen nothing yet.”
Avoid speaking in double-negatives and answering a question with a doubl-negative.
When the counselor uses a double-negative, it’s like a spit ball. You don’t have to answer the
Your response should be, “Please rephrase the question.”
31. TRAPS – PARAPHRASING
OFTEN the opposing counsel will take your idea or response and give it a new twist that you
didn’t intend by putting words in your mouth or paraphrasing you.
BE SHARP. When you hear you response coming back at you, it may even sound more brilliant
reworded and summed up by the opposing counselor, but beware. That small flattery now will
be ammo later and the transcript will show you agreed with some innuendo you missed.
When you hear paraphrasing of your testimony and the counselor ends the set-up with don’t you
agree, no matter how much sense it makes there’s probably an if/then in there you might’ve
missed, so your response is always: “I’d rather stick with my original response.” It’s sounds odd
saying it that way but that is the way to avoid inadvertently contradicting yourself. Just say to
yourself, “Wow! He really sums me up nicely but say outloud, “I’d rather stick with my original
32. EYE-CONTACT ON THE STAND
Maintain eye-contact with the counselor asking you questions and when you’re answering.
Don’t look at the jury, judge or gallery when you answer. Consider the counselor your only
audience. Speak to him. Listen to him. All other actions and reactions from those present
should be diminished in your perceptions. Don’t react to reactions around you.
The counselor may try to avoid eye-contact with you to make you seem uncommunicative. If
this happens, keep poised and keep your focus of attention on the counselor if he averts your
eyes or starts rifling through his papers as if looking for something. If the counselor looks
through his papers while you answer, answer to the top of his head. Keep your gaze on the
counselor at all times.
Do NOT address the judge, jury or gallery.
Looking away is taken to indicate: inferiority; guilt’ vagueness; insincerity.
Rapid eye motion indicates: desperate thoughts; desperate emotions.
- Over-Disclosure is TMI, too much information. Avoid:
- Pregnant Pauses
- Chatting like on a Coffee Break
- Personal Attacks
- Provocations of Motive
- Wanting to ‘help’ opposing counsel
- Controlling perceptions of others
- Controlling perceptions of character
Forgetting is what happens to information, once stored in long-term memory, which can not be
We forget memories through:
Decay – sensory storage, short-term memories and most recent memories rapidly fade
Interference – memories are blocked or erased by previous or subsequent memories
Repression – excluding from conscious awareness painful or undesirable memories
Retrieving Lost Memories
Lost memories can be retrieved or triggered by:
Re-injury or trauma
35. TYPES OF MEMORIES
SHORT TERM: flitting memory which is limited to about 7 items regarding a person’s very
LONG TERM MEMORY: process short term memories through a collector distributor and files
the details for use in the following types of memories:
EIDETIC MEMORY: (photographic) to remember with uncanny accuracy, visual details stored
in Short Term Memory.
SEMANTIC MEMORY: knowledge of language, its rules, words and their meanings.
EPISODIC MEMORY: our life experiences of events with an indelible memory.
DECLARATIVE (EXPLICIT) MEMORY: all the memory you can call forth consciously using
semantic memory and episodic chunks.
PROCEDURAL MEMORY: remembering how thing are done; machines; instruments; rules.
SKILLS MEMORY: remembering how to do easy and complex activities.
PRIMING MEMORY: filling in the blanks like a puzzle.
It’s interesting to observe your memories and the memories of others and to categorize them for
veracity. Remember what a person remembers about an incident is greatly affected by how their
memory processes under high stress.
36. THE TROUBLE WITH EYE-WITNESS TESTIMONY
Eye-Witness testimony is mostly unreliable:
What is experienced in short term memory isn’t all stored by long term memory so eye-witness
testimony is a fragment of what occurred.
Eye-Witness testimony decays with time and is further influenced by age, sex, maturity and
state-of-mind at the time of the incident.
Some or all of what a person sees or hears can be repressed or exaggerated.
A person’s state-of-mind and their ‘suggestibility’ are factors during the event.
People confabulate. They start telling a story about what happened and it usually contains some
exaggeration but they keep telling it that way so long they convince themselves it really
happened exactly as they confabulated it.
People are dishonest and most aren’t as observant as they think they are. Most people aren’t as
accurate as they think they are and people use loaded words or phrases packed with: innuendo,
bad metaphors, double-meanings and too much emotion.
Don’t let eye-witness testimony scare you. It’s not TV. If anything should scare you about
hearing eye-witness testimony, it should be that the jury doesn’t know how unreliable it is.
37. WORDS – SIGNALS – INTERPRETATIONS
There are three components to what you say:
Visual Vocal Verbal
55% 38% 7%
Body Motion Rate Words
Gestures Pitch Examples
Eye Movement Volume Sequencing
Facial Expressions Timbre
Research reveals that how you present what you say is often more important than the words you
chose. How you are seen delivering what you verbalize and the sound or your voice matter more
than your vocabulary or the examples you use.
38. QUOTING and CITING SOURCES
Don’t voluntarily quote or cite someone in your response: i.e., “They said…”, “He said…”, “I
read…” or even “I said…”.
If you must quote yourself, another person or cite reference material from memory:
- know who said/wrote it and where
- precede answers by saying: “As I RECALL, she said THAT…
- Practice making the verbal distinction between RECALLING and REMEMBERING.
- RECALLING suggests you are using your memory to call up a shifting memory, that
is you are not making a statement of calling on a certainty. Saying REMEMBER
suggests you are drawing upon a vivid certainty.
- when you say you ‘recall that’ you can paraphrase something you read or hear without
being in danger of ‘misquoting’ anyone or anything you read, or yourself.
Our recall for what was said is actually 20% less reliable than our ability to recall what actually
happened, and memories are laid down on two tracks – what happened and how what happened
felt. Unless you remember exactly what you heard using the phrase, “I recall that…” allows you
to be close enough without misquoting.
39. THEORETICAL TRUTHS
- best guesses of Others
o who have more power
o to whom we surrender power
Counsels’ ears are like radar for any bit of info that can be attacked. They listen in an entirely
different way than people and they’ve been doing it for years and years. Don’t try to slide
anything by them. If it contains any of the above, it’s a theory and is easily challenged.
The best way to avoid being shredded over a theoretical truth is to identify them in your
testimony and avoid saying them to make a point. A good exercise for shaping your own
testimony is to write out the long winded version and then edit out all of the above.
40. POWER’S INFLUCENCE
Power is a critical link between our potential to succeed and the success we actualize.
- the capacity to influence through charm or through expertise and respect
- something Others give to you
- something Others withhold from you
- something Others take from you
- something Others foist on you
- if Others think you have power, you do
- if they think you lack power, you do
- if the think you lack power, they won’t give it to you
even if you deserve it especially when it’s to their advantage
to not-give or deny you power and when they must surrender
power of their own in order that you should have some
a resources that’s not unlike money, hoarded or flowing
41. THE CHAIR
Not all people pick-up a vibe from the chair. Sensitive types be warned. That chair has a history
of suffering for justice. It feels solemn and grave. The chair is empty when the verdict comes in,
so there are few happy moments in its area.
42. IS THERE A QUESTION?
The counselor can only ask you questions. He can’t make statements. Listen carefully for
compound questions, innuendos and for paraphrasing which are actually statements disguised as
questions. Even the counselor’s statements are phrased like questions, i.e., “Isn’t it true that you
were loitering…” or “And didn’t you then decide to join Mr. Smith in a bank robbery…”.
43. WHAT IS EVIDENCE
Evidence is every type of proof allowed by the judge which is used to convince the court that
material and relevant evidence are facts in the case:
- oral testimony
- documents including journals and diaries
- public records
- circumstantial evidence like fingerprints, DNA, blood spatter
- testimony based on charts, models, maps
- comments and arguments by counselors
- statements by the judge
- answers ruled objectionable by the judge
- charts, maps models used for demonstrations
- survive a challenge of ‘Objection!’
- be relevant
- be material
- can not violate the rules against ‘heresay’
44. CREDIBILITY and DISPRESPECT
Disrespect – even adversaries can trust each other to some extent, provided there is a sense of
On the stand, counsel alternates between charm and insult while he examines you with questions.
When the reputation of an individual, product, or organization is minimized, trivialized or
humiliated there’s a sense of uneasiness and discomfort that often leads to frustration, anger and
outwardly negative behavior by the person disrespected.
When the counsel treats you like you’re a darling one minute and no smarter than the village
idiot the next, you may experience this treatment as a mounting insult of disrespect.
Practice poise. Count to three. Remember the counselor wants to win a point or make you throw
down your racket and show the world what anger does to you. Don’t expect to be respected.
Expect to be toyed with. Just don’t lose your cool. One one thousand, two one thousand, three
one thousand and maybe a few more seconds which are okay. You are in control. You don’t
have to step on the gas pedal at the mouth until it’s safe.
45. CREDIBILITY and CANDOR
Candor means telling-it-like-it-is, no holes barred. It’s an unvarnished truth, shot from the hip
with attitude. It’s truth plus the facts, truth plus some perspective, truth that reflects that there
may be other observations on the same set of circumstances and facts, but from different points
Credibility is always given to those whose past behavior, track record and accomplishments
warrant it with some reservations for personality disordered, who are unable to perceive anyone
DISPARAGE: to make remarks that either boldly state or subtly suggest contempt to or for
someone or something.
Attorneys want to win. They can get dramatic and so can you when you testify. Disparaging
remarks are like a slam dunk, intending to score, to make a point that stands out with emphasis.
A disparaging remarks: belittle, demean, blister, downplay, spotlight, diminish, slam, sneer,
discredit, pooh-pooh, dump on, knock, admonish, berate, blame, carp at, chastise, chide,
condemn, incriminate, reprimand, scold, upbraid, humiliate, ruin, impugn or corrupt.
If the counselor uses bold or subtle disparaging remarks, practice detachment. Keep your ear on
the question that follows what you consider disparaging remarks. Disparaging remarks hurt.
One thousand one, one thousand two, one thousand three, access your SECONDARY emotions.
Do not combat disparaging remarks by making them as part of your testimony.
47. COMPONENTS OF CREDIBILITY
Empathy – the on-going, often continuous verbalization or regret, embarrassment or personal
humiliation, promptly conveyed; being able to admit you hurt someone or the ability to sense
that someone is in pain.
Integrity – the admiration of others shown toward people, products, even ideas and concepts
generated by the attributes of credibility, candor and empathy.
Trust – generally the absence of fear, the feeling of reliability and that adverse situations, pain or
mistakes will have less impact or be minimized with the aid of the stable relationships affected.
48. HARASS or BADGER
Harassing or badgering means to persistently annoy, attack or bother you with repeated attacks
that exhaust you. It is behavior that threatens or torments you, especially when relentless.
If the counsel hounds you and goads you over and over about a question that you have already
answered, he his fishing. He wants to have you blurt out anything and hopefully what he wants
to hear you say.
Legally, badgering is a fine line between applying pressure to extract the truth and when the
counselor crosses it legally, your attorney will say, “Objection!” and the judge will rule.
Sometimes you feel badgered but it isn’t badgering according to the rules. When this happens,
you must find composure within yourself. You may have to repeat yourself saying, “That’s all I
recall at the moment” or “I’d prefer to stick with my original answer”, and that’s okay. It’s more
than okay. It’s being prepared and knowing your rights not to be bullied.
Don’t worry about how you appear because if the counselor persists, he runs the risk of looking
like a cruel and dubious bully.
When you can maintain your poise while being badgered without objection, the counselor will be
thrown off of his strategy.
He will have to persist or desist.
49. FIVE TYPES of POWER
According to most psychologists there are five types of POWER:
COERCIVE – The power to punish
NURTURING – The power to reward
LIGITIMATE – The power of authority
REFERENT – The power of fame and significance
EXPERT – The powers of experience or education
Don’t be power-tripping on the stand.
Don’t form your answers so that you can include added or insinuated insults to punish somebody
Don’t kiss-up. Flattering testimony is perilous. Everyone hears your motive and they don’t
retain what you say in your testimony beyond that.
You are there because what you say has some legitimate or expert authority from your direct
experience or education in the matter.
50. CONFABULATION #1
Confabulations shape decaying memories into symmetrical, smooth stories without snags that
can be challenged as untruths.
In conversations we give each other latitude to ‘shape’ a story into tidy narrative to make it more
interesting, funny or whatever.
In Court, you are your own worst enemy until you separate the trees of reality from all the pre-
fabbed gab and embellished details.
Ask yourself, “Did I really, really hear/see/do that that way or am I using selective memory and a
lot of descriptive words to get across a feeling I was having?”
Ask yourself, “Am I just saying this is true because I’ve been telling the story this way for so
long it seems true to me and I don’t want to be embarrassed by changing the story now?”
51. CONFABULATION #2
Memories decay, burp up images or sounds and hover along with the Truth, not unlike the
specter of eerie swamp lights, glow-balls called, Foxfire.
In Court, confabulating comes across with all the features of a swamp bog, some with scientific
explanations and some without:
- there is no solid ground (too much unsubstantiated info)
- it’s a shifting bed of peat (sounds too pat to be true)
- the ground trembles under foot (there’s tension in the timbre of your voice)
- unexpected peat mats surface (unintentional exaggerations make you sound “iffy”)
The best way to rid your testimony of confabulations is to examine your true memories and
delete any frills.
52. JAMS and BLANKS
Sometimes you will not be able to recall something you knew just a moment ago or something
you said in a deposition or just recently while talking to your attorney.
Testifying is stressful. Your brain can freeze, jam and go blank at any moment.
If you can’t remember something at the moment, but know you know, your response is
definitely-not: “I don’t know.”; “Perhaps…”; “I forgot…” or “Ummmm…”
Tell the court:
“I can’t seem to remember that right now. May I have a moment or can we revisit it?”
This way, when you do remember the answer, it won’t seem like you are doing so conveniently
or making one up after the fact.
53. IT’S NOT LIKE A MOVIE
On TV and in books and film, testimony is always dramatized with a human spewing: passion;
anger; tears; shattering moments of truth; extended moments of tense hesitation, and confessions,
just before the commercial break.
This is not a story though for every case there are as many as people who attend the proceedings,
but it’s not advisable to pattern your testimony after any scene, chapter, or commercial.
The witness stand is not a soap-box. It’s not your chance to get you ya-ya’s put or perform
emphatically for the gallery.
The stand can be a temptation. The audience is captive and at last you get a chance to let certain
people know what you really think and feel. Don’t do. Just answer the question as briefly and
fully as you can, after counting one one thousand, two one thousand, three one thousand.
54. TAKING QUESTIONS ON THE STAND
Answer just the question before you. Simply state the facts. Omit metaphors and innuendos.
Don’t regale or get emotional. Don’t skip around in time. Answer completely but as briefly as
possible. Never volunteer more details than necessary to answer.
Questions are parsed into little fragments sometimes and it’s tempting to anticipate where the
counselor is going and skip to the end to be helpful and end the tediousness. Don’t skip to the
end presuming to seem helpful or as if you have nothing to hide. Don’t answer more than the
little bit of a question, especially if it looks bad.
55. USING GESTURES
What you say in court is being transcribed for the record.
- avoid nodding yes or nodding no
- avoid shrugging
- avoid facial expressions like rolling your eyes
- avoid shaking your head
- avoid raising your eyebrows and giving ‘a look’ with attitude
- avoid using hand gestures
- SAY “Yes” or “No”
56. SELF-INCRIMINATION – PLEADING THE FIFTH AMENDMENT
Refusing to answer on the basis that it might incriminate you only applies in criminal cases, not
in civil cases, neither does it apply in business cases.
Something is incriminating if the verbal revelation of criminal activity produces the likelihood or
risk of going to prison.
The right to refuse to answer extends to what you SAY. The courts may subpoena your DIARY
or other records.
The right to refuse to answer doesn’t extend to your body. The courts may compel an
examination or invasion of your body to obtain incriminating evidence.
On the basis it might incriminate you, you cannot refuse the court’s order to provide:
- Voice prints
- Foot prints
- Body cavity searches
Anger is not a choice. It’s a natural limbic spike of cognitive discomfort caused by easily
stimulated patterns of previous wins and losses that trigger simultaneous predictions of more bad
things that might happen and hurt.
Anger is processed through the brain. It’s a bi-product of the limbic system. It’s tethered to a
repository of past injury and survival set responses, fear or flight.
Anger only reacts to three fundamental stimuli – real or perceived:
Counsel knows exactly how to ask you questions that will zero-in on this natural response
system, so you are going to experience discomfort. See the Composure card.
58. EVASIVENESS - DELIBERATE
Withholding unnecessary details surrounding the truth as it bears on the ‘question-before-you’,
can backfire when you hem and haw about what to leave-in and what to leave-out.
Ask yourself, “What is the easiest, most direct answer, keeping to the bare-boned truth?”
Keep it simple. No spin. Don’t go running around trying to frame your response or inject extras.
The counselor only gets one shot per question. If you fully answer the question, he has to frame
a new question to get closer to any detail he failed to unearth. He can not just paraphrase his
question or reword it. It’s a fine line. Count to three. Give your attorney a chance to object.
If he does object, wait for the judge’s ruling before you speak. He will rule:
- “Asked and answered.” or “Answer the question (before you).”
Understanding what it means to answer the question before you can reduce a lot of stress. The
question before you is just the most recent question asked. When you sense that you didn’t
completely answer a previous question it’s tempting to go back and include what was left unsaid.
Don’t do this. Answer each question and let it go. Answer the next question without referring to
or trying to finish-up answering previous questions.
59. MEMORY PROCESSING
Three Ways Memories Change
Memory Involves Three Influences
Confabulation – Filling in memories with wishful thinking or fabricated statements.
These ‘fillers’ are created and added to memory after the event and are recalled so often that they
become part of our truth, but they don’t meet court standards. Don’t go there. Extract filler.
60. DON’T GET DEFENSIVE
Your attorney defends you. It’s not your turn to argue, convince or spin. Your job is to just “tell
the truth”. No two people remember the same event the same way. Perception is subjective. All
cases are a team effort.
Don’t presume it’s all up to you to make, break or save the case.
Counsel avoids asking question that you might urgently want to touch-on to prevent a gathering
Don’t try to change a misperception in an ‘intro’ or as ‘part of’ an answer before you. Answer as
asked. No more. No less.
Your attorney undoes or re-frames any damage you perceive.
In tennis you don’t win every volley.
The case is not a play-by-play event. One side presents its case, then the other.
61 CIRCUMSTANTIAL & FORENSIC EVIDENCE
Circumstantial evidence allows the judge and jury to deduce a certain fact from other facts that
have been proven.
It intends to create a belief or new fact by showing surrounding circumstances which logically
lead to it, i.e. his fingerprints at the scene of the crime.
Fingerprints at the scene logically place a person there at some time. Fingerprints are scientific
evidence about the circumstances at the scene that establish a fact and that fact is valid in
deducing the person was at the scene at least at some point in time.
Types of Circumstantial Evidence
- Gun Shot Residue
- Fiber Traces
- Fingerprints, Footprints
- Bodily Evidence
- Oral Testimony
Forensic Evidence means scientific circumstantial evidence that establishes a fact from which
other deductions are logically made.
Leading is when a counselor recites or spins a question with selective information in a deliberate
order or manner, requesting ‘yes/no’ answers that damn you if you do and damn you if you
If your attorney doesn’t object, but you do because a fact was misstated, you can ask to have the
Although leading questions are allowed on cross examination, you shouldn’t answer them at all,
If you feel you are being lead to an answer that condemns you no matter how your answer, your
response is: “The question can’t be answered because it misstates the facts.” Then, point out the
improperly assumed fact within the question.
63. DIRECT – CROSS – RE-DIRECT EXAMINATION
On direct examination, your attorney asks you questions to establish your testimony as evidence.
On cross-examination, the opposing counsel asks you questions about what you testified to on
On re-direct examination your attorney asks you questions to clear up any damage done on
Heresay is the inadmissibility of evidence through the repetition of out-of-court statements;
repeating second statements about something not directly experienced by the witness; second-
hand testimony in which the witness repeats what others have said to them rather than having
first-hand experience or knowledge.
“Andy told me he saw her steal the car.” is an example of heresay. You didn’t see anyone steal
the car and only have Andy’s word for it.
65. SPEAKING TO MOTIVATION
When it comes to others, the only truth about which you can speak is either exactly what you
saw or exactly what you heard.
Speculating on motivation is subjective and your interpretation, not a fact.
To tell the truth, the whole truth and nothing but the truth, avoid talking about:
You are not a psychologist or psychiatrist and while you may be able to perceive motivations, in
court, you are not an expert.
Don’t volunteer your idea of another’s motivation. Don’t let the attorney put words in your
mouth about other people’s motivations. When asked about motivations, your response should
be: “I’m not a professional. I can’t speak to the motivations of somebody else and I don’t want
to speculate or generalize.”
66. PROPER NAMES and PRONOUNS
Remember this is the first time the other side, jury and judge has heard your testimony.
Be sure everyone can follow you. Avoid losing the audience in the shifting of pronouns like: he;
she; them, they, it, everyone, the town, that place, etc. When information is familiar to you,
pronouns can turn relevant testimony into a confusing mish-mash.
Use proper names whenever possible.
To properly manage your testimony, this is another reason to practice your responses aloud, so
you get used to naming names and places instead of shifting to pronouns.
MUCH good testimony is lost when you down-shift into using pronouns instead of proper
67. TYPES OF ABUSIVE TACTICS – A SUMMARY
There are twelve types of abusive tactics:
- destructive criticism and verbal abuse
- pressure tactics
- abusing authority
- abusing trust
- emotional withholding
- minimizing, denying, blaming
- economic control
- self-destructive behavior
68. DESTRUCTIVE CRITICISM and VERBAL ABUSE
- humiliating remarks
69. PRESSURE TACTICS
Rushing others or being rushed to a decision or answer through:
Establishing patters of withholding
- imminent abusive attacks for non-compliance
- taking out disappointment on others
70. ABUSING AUTHORITY
Claiming to be right I all matters of opinion, preferences, perception and interpretation.
Insisting statements are true without citing at least two proven facts to base them on.
Implementing decisions without concern for how it impacts others.
Failing to inform others of changes made in response to shifting priorities, leaving them to:
- be diversionary phantoms of blame
- scramble to cover for you or dangle in silence
- be perceived as ineffectual
- become dependent by abandonment
- fall short of critical mass required to actualize, optimize or enjoy their time
Claiming you are using logic when you can’t define the axioms of logic you apply.
Assuming ‘logical’ is anything that facilitates your point-of-view.
Withholding appropriate apologies.
Acts of Disrespect:
- changing topics
- not listening
- not responding
- twisting the words of others
- putting others down in public
- spreading doubt and suspicion about others
with spin and innuendo
72. MINIMIZING – DENYING – BLAMING
- making light of behavior or situations impacting others
- ‘pooh-poohing’ the concerns of others
- denying you abused others
- shifting responsibility for abusing others to:
o influence of others
o ignorance of others
o sensitivity of others
o misunderstandings of others
73. ECONOMIC CONTROL
- interfering with the work of others
- not letting others work to prevent
o financial freedom
o a share in financial decisions
o bonding with others
- taking all the money or limiting money available to others to curtail, control or
- them too vulnerable to confront you
Preventing or harassing others about contacting family and friends.
Monitoring phone calls.
Telling others when and where they can go and with whom and for how long.
Taking car keys, hiding bus passes.
Alienating the family and friends of others with forms of abusive behavior.
Maintaining a false personality for the word, so others only undermine their own credibility by
disclosing your abuse.
- making uninvited, undesired visits or calls
- checking-up on; spying or following others
- checking other’s e-mail, voice-mail with technology instead of permission
- sending somebody to intervene for you when others initiate and maintain their preference
for no further contact
- demanding or coercing disclosures from others who prefer to keep it to themselves
76. CONFLICT IS MORE THAN ARGUING - CONFLICT-O-RAMA MENU
When we think about conflict, we usually think in the narrow terms of yelling. There are many
forms of conflict beyond the argument and sometimes we don’t realize there’s conflict all around
us or that we may even be the cause of conflicts, even among family and friends, not to mention
those on the opposing side of the case. Think about these many types of conflict to move
through them successfully:
Ignoring Distrust Neglecting to Inform
Flight Threats Counter-Threats
Values Defiance Secrecy and Deception
Avoidance Subversion Excluded Parties
New People Poor Timing Contradicting Experts
Facts not in Evidence Violence No Access for Grievance
Upheaval Tactical Alliances Uncertainty
Stalemate Intellectual Persuasion Sacrifice
Contention Rushed Decisions Paralysis by Analysis
Complexity Muddle Hostile Stereotyping Submission
Coalition Building Personal Attack Lack of Legitimacy
Strategic Delays Rivalry Inflammatory Media
Dictatorships Domination Demanding Concessions
Pursuit to the Bitter End Ostracizing Crisis
Dehumanization Refusing to Negotiate No Clear Goals
Vested Interests Time Constraints No Alternatives
Inflammatory Statements Escalation Procrastination
Language Differences Emotions Credibility
Threatened Identity Misinterpreted Motives Misinformation
Withholding Assuming Worst-Case Failure to Anticipate
77. MAJOR LIFE DECISIONS
- participate or avoid
- accept or deny
- cope with extreme emotion
- change career
- find support of a mentor
- will and testament
78. ANSWERING POINTS
Have your attorney go over a list of questions that he anticipates you will have to field. Practice
your answers aloud.
Answering off-the-cuff is perilous. It could begin with: “I think…”; “I guess…”; “Perhaps…;
“Maybe…”; “Possibly…”; “Honestly…”
You will undoubtedly RAMBLE and will have to back track so your testimony becomes
Give each answer a beginning, a middle and an end, in as short order as possible. All you have
to do is answer the question that’s asked, the one single question before you, one after the other.
How much ‘explaining’ you do is optional and often perilous.
Keeping your thoughts organized is very challenging. Being prepared reduces stress and avoids
79. TYPES OF OBJECTIONS
- Compound Questions
- Lack of Foundation
80. LACK OF FOUNDATION
The counselor fails to build a basis for the question asked. For example, asking about what was
written in a diary before the diary was entered into evidence or asking what happened at a party
before establishing the witness was at the party.
81. IDENTIFY WHICH PARTS OF YOUR MEMORIES and TESTIMONY are:
- here say
82. ABUSING TRUST
- lies; deceit; duplicity
- withholding information
- cheating on others
- excessive jealousy
- sharing the confidential disclosures of others with other others
- turning the confidential disclosures of others against them to:
o undermine their credibility
o place and maintain wedges of estrangement just to control information and
prevent intimacy that somehow might threaten your agenda, the world as you
prefer it or how you want to be perceived
83. LOVE and TESTIMONY
Why characterize love on the stand? Consider the following:
Plato wrote “Symposium”, the first known book about the nature of love. He puts forth that
there are three basic motivations and how they blend.
BASIC MOTIVATIONS OF LOVE
Eros: the search for someone with specific physical characteristics
Ludus: love as a game
Storage: platonic, compassionate love
BLENDED MOTIVATIONS OF LOVE
Pragma: potential love-objects are rationally considered = Ludus + Storage
Agape: loving a person without the expectation of reciprocation; dutiful and selfless love = Eros
Mania: addictive, desperate, emotional highs and lows = Eros + Storage + Ludus
84. MODERN LOVE
Erich Fromm wrote “The Art of Loving”. He wrote about four components of love.
CARE – wanting the best for those we love
RESPONSIBILITY – being sensitive and responsive to need of others and self
RESPECT – accepting people for who they are without expectations for understanding why they
are as they are.
KNOWLEDGE – aware of and responsive to needs, values, goals, feelings of others
Fromm went on to write about four levels of love:
Infantile Love – I love you because I am loved.
Immature Love – I love you because I need you.
Mature Love – I need you because I love you.
Erotic Love – fleeting and soon exhausted.
85. STAGES of CONFLICT
If you are in court, something has reached a third level conflict and become an overt battle,
however, much of the case may only reach stage two conflicts. Another way to reduce conflict is
to identify them and who’s contributing what as well as what stage that conflict is in. Here are
the three stages of conflict:
1. Everyday concerns and disputes;
- annoyance and anger that passes quickly
- people are usually willing to work things out
- listening is essential
- a ‘wait and see’ attitude prevails
2. Significant challenges with long term consequences and emotional response:
- self-interest and saving face are crucial
- a CYA (cover your ass) attitudes prevail
- verbal victories and defeats are tracked
- witnesses take sides
- imaginary debates take place
- alliances and cliques form
- coping doesn’t work
- people are the problem
- a ‘prove yourself to me’ attitude prevails
- unchecked, stage two conflicts lead to delusion
3. Overt Battles
- volatile emotion rage
- the desire to punish drives past the desire to win
- desire to get rid of others
- a ‘the end justifies the means’ attitude prevails
86. TWO LAWS of MAGICAL THINKERS
You know who these people are, perhaps you are one yourself. Magical thinkers embed or
attach a personal symbology to every random sight and sound and create a language of context
and meanings called, ‘signs’.
It’s relatively harmless but for those who don’t see ‘connections’ or ‘signs’ in license plates or
live in a continuous state of serendipity, magical thinkers can cause estrangement, especially
when they testify.
Magical Thinking is based on two laws:
The Law of Similarity
The Law of Contagion
These laws merge.
LAW OF SIMILARITY – associated people, symbols, sounds and sights are abstractly
referential and connected in ways that defy scientific explanation.
LAW OF CONTAGION – what or whomever crosses in time and space continues to stimulate a
fertile, cross-dynamic after they are separated.
Magical Thinkers invent this personal stream of serendipity to create self-reassurance using cues
to inform choices. They are unaware that they chronically filter out noisy stimulation (that
which doesn’t assure them) and just observe selected perceptions. “Connections” make them
feel that they so-matter-to-the-cosmos that it embeds clues in a personal abstract language like
breadcrumbs on the path. They feel safe and find order in chaos. Magical Thinking can be a
harmless, temporary defense mechanism or a petrified foundation of delusion that can’t be
modified by facts.
Magical Thinking has no place in court anymore than confabulating. Try to curb your own or
explain to the Magical Thinker that their interpretation and way of explaining events is not at
question, but should be avoided because not everyone can follow it and you are speaking to a
gallery of people from all backgrounds and need as many people as possible to understand your
Magical Thinkers should write out their long-winded account of signs and connections for each
anticipated answer and then edit-them-out or find new ways to tell the same account even if it’s a
much blander version to the Magical Thinker.
87. BREAKING PROMISES
- not keeping agreements
- not taking a fair share of the implicit grunt-work to fulfill group responsibilities
- using the word ‘sorry’ as if it erases all pain and inconvenience to others
- falling back on ‘sorry’ to:
o preserve looking good at the time
o tie-up the time of others
o prevent progress without you
o make yourself feel better
o preserve a false sense of security and power you feel when the very others you
left to flounder, suck-it-up in the wake of your broken promises so you won’t be
inconvenienced by the inconvenience you caused them
o failure to make appropriate apologies
88. ACTS OF VIOLENCE
Intimidation – angry, threatening gestures; use of physical size to intimidate; out-shouting others;
driving recklessly; implied peril to kids; pets and the right to an opinion or choice
Destruction – wrecking personal property; punching walls; throwing or breaking things
Threats – making or following through on the intention to hurt self or others.
Sexual Violence – degrading others based on sexual orientation; using pressure, force or
coercion to obtain immediate sexual gratification and for sexual acts others decline
Physical Violence – being violent to others; children pets; slapping; punching; kicking; pushing;
biting; grabbing; choking; burning; stabbing; shooting; torture; bondage; death
Weapons – keeping weapons around to create pervasive fear and intimidation; making threats to
or attempting to maim or kill others and/or defenseless living things
89. HEALTHY INTERPERSONAL RELATIONSHIPS
It helps to know what’s healthy when family and friends are all drawn into a case.
CONSISTENT QUALITIES of healthy interpersonal relationships are:
1. Shows empathy and concern for the feelings of others.
2. Puts others ahead of self-convenience.
3. Has a genuine interest in the ideas of others.
4. Able to tolerate ambivalence in long-term relationships without giving up.
5. A capacity to acknowledge one’s own contribution to interpersonal conflicts.
90. MATERIAL and RELEVANT
Material means what is relevant and significant in a lawsuit as compared to minor details.
Relevant means testimony that has some value or tendency to prove a matter of fact in
connection with the case on trial.
91 – 95 DIRECTORY OF CARDS
Now that you know the fundamentals of law, procedure, psychology, conflict, love and
relationships your experience serving the court in the pursuit of justice, conflict will greatly
diminish and be replaced by the confidence of knowing what you didn’t know about testifying.
It’s a lot to learn in as few words as possible. I encourage you to print out the deck of e-flash
cards and take them along with you as you go through the experience. They are small and
discrete to fit in your handbag or pocket. Take a few cards with you each day and glance over
them while you sit in traffic or wait in line.
Repetition is one of the fastest ways to learn anything and make it an effortless part of you.
When you’re testifying and opposing counsel tries to put words in your mouth by paraphrasing
you with a double-negative or disparaging remark you never said, you will say, “I prefer to stick
to my original response.” The counselor will be foiled and you’ll win a point for your side,
naturally. Naturally, at that moment, you’ll be glad you used the e-flash card deck of CourtCues.