Testifying 101
By Bill E. Branscum
Copyright 1999

Public speaking is often reported to be one of the most stressful experiences people find themselves required to face. Testifying could aptly be described as public speaking under pressure.

The ability to testify effectively is one of the most valuable skills an investigator can possess. There are very few aspects of the private investigator's professional life that evoke the visceral response that accompanies being called to testify; perhaps no other aspect of job performance is as revealing about the investigator's experience. It can be an intimidating experience for the neophyte and I have known many veteran investigators who anxiously dreaded the prospect.

Virtually everyone who has published material on this subject proffers opinions I disagree with, probably because so many of them simply regurgitate the mantra in everything previously written on the subject. For example, several sources advise that witnesses should confine their answers to "yes," "no," or "I don't recall." Although the whole world seems to preach that, it is abysmally poor advice.

By all means keep it short, the shorter the better. If a question can be answered "yes" or "no," this is the perfect answer so long as it is fully responsive to the question and you should always admit that you don't know or cannot recall when asked a question that you cannot answer. The problem is that when people contrive to answer all questions yes or no, they leave themselves no room to move.

Attorneys are argumentative by nature, that's what they do. When it becomes obvious they have a witness who is determined to answer yes or no, they capitalize on that by baiting them into committing themselves to positions they should have qualified. This is especially true in deposition where you can be required to answer questions, and thereby commit yourself to answers, that you would never be asked in trial - particularly related to your opinions.

Remember, depositions are not even a little bit like trial testimony. Your attorney will object to questions which you will answer anyway. This is confusing to people new to the system.

In a deposition, although there is nobody to sustain or over rule the objection, you must always pause after a question is asked to give your attorney time to object for the record. The answer may not be admitted later once a judge has an opportunity to rule on it, but you will answer the question once the attorney has finished his objection unless specifically directed not to answer.

There are some things you will not answer and/or produce. If your attorney says he has directed the witness not to answer, you can expect fireworks. Fireworks is fine, they cannot hit you! You will not answer the question until a judge requires that you respond.

You should also be aware that the attitude and demeanor displayed by the attorneys involved in a deposition is often dramatically different than the way they present at trial. Attorneys may be deliberately rude, crude, obnoxious and offensive to see what effect it has, and what your vulnerabilities are, when they would never behave that way before the Court. I have read books filled with cute and clever responses that the authors claim to have used to put Clarence Darrow wannabe's in their place - I cringe every time I see that sort of thing.

While I will agree that some attorneys can be remarkably stupid, I admit that I have seen more than a few make complete fools of themselves, and there is no doubt in my mind that many are not nearly as cute and clever as they think they are, none of that makes any difference. This is their game, they have all the advantages and even the least competent of them is likely to be far better at this than you are.

No matter what you encounter when called to testify, always be cordial and professional. When they rephrase your answer in an effort to put words in your mouth, you need not argue semantics as the stenographer's record accurately reflects what you said. When they say, "so you're saying . . .," don't argue, don't get defensive and don't get cute. You can always ask that the recorder simply read back what you said.

When the attorney launches into some rhetorical nonsense that is not a question, don't fence with them - ignore it. If pushed to respond, say, "I'm sorry but I didn't understand the question."

I have seen it suggested that a witness should wait 30 seconds before answering any question; thirty seconds is an extraordinarily long time. Perhaps the better way to say it would be wait what seems like thirty seconds (more like five to ten) - the delay allows you to consider your answer and makes it difficult for the attorney to "get into a rhythm."

In deposition you should always reflect upon a question for as long as necessary to formulate a response you are comfortable with. Keep in mind that whereas a transcript does not reflect pauses at all, a poorly worded response is recorded for posterity. Take your time.

I have seen it suggested that a person who intends to testify should wear blue. That sounds silly but it isn't. You should wear blue for precisely the same reason that you would never wear purple or fluorescent pink. Colors do impact upon impression. Wear blue, grey, even black perhaps, but a blue that isn't "loud" is probably the best choice.

If asked to explain something in deposition that could conceivably get you in trouble, DO NOT DEPEND ON YOUR CLIENT'S ATTORNEY FOR ADVICE. I promise you that this could be a serious mistake. Your client's attorney has a responsibility to represent their interests to the exclusion of anyone else's. Should you reach a point where your interests are inconsistent with theirs, the absolute best you can hope that the attorney will do for you is to make it clear that you need independent legal advice. Excuse yourself and seek competent legal advice.

This begs a serious question, "what do you do when you are facing questions related to an area where you recognize that you have exercised poor judgment, or undeniably did something wrong." The answer is, "that depends."

If the issue relates to a simple mistake, and by that I mean anything you cannot be arrested, fined, sued or lose your license over, you simply tell it like it is. If it can be argued that you did the right thing, your client's attorney will argue it; otherwise, you are going to be exposed as a human being capable of making a mistake. You'll get over it. Never, ever compound a simple mistake by lying or trying to cover it up.

If the issue involved is potentially serious, you must accept the fact that your role has changed. You need competent counsel and you must notify your insurance carrier immediately. None of us wants to hire an attorney and we all hope to keep from upsetting our insurance carriers, but do not yield to the temptation to "hope it will go away."

I have seen recommendations to the effect that you should turn the matter over to your insurance company and rely upon them to defend your interests. In many cases, this is exactly what you should do, but bear in mind that they can only be counted on to defend your interests to the extent that your interests are consonant with their own. In some situations, you would do well to hire an attorney to represent you.

One thing does not change - never, ever, under any circumstances compound a bad situation by lying or trying to cover it up. I would encourage neophyte investigators and rookie law enforcement officers to get that concept firmly embedded in their minds.

In summation, I would say that investigators who make a good faith effort to do their job properly, and make no effort to twist, distort or otherwise misrepresent the facts, have no reason to fear being called to testify. Prepare yourself beforehand by thoroughly reviewing your case, take your time, tell the truth and everything will work out fine.

Bill Branscum is a licensed Private Investigator and owner of Oracle International, an investigative agency he established in Naples, Florida following his career as a federal agent. His experience includes investigations related to narcotics smuggling, money laundering, securities fraud, the unlawful exportation of critical technology, the sexual exploitation of children and contract murder.

Oracle International maintains a web site at http://www.OracleInternational.com.

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