I have to admit that when I began testifying as an expert witness in the early 1980s I didn’t have a clue about what to do or how to do it. In my first testimony, I just went to court and winged it with no advice from counsel.  Somehow I got through it.  Then, I began to testify more frequently, both in depositions and at trial on business valuation matters, usually in state courts in or around Memphis.

When I looked around for some guidance, there was little to be found.  Then I stumbled across a booklet, “Testifying with Impact,” by a former professor and speech coach, Arch Lustberg.  It was published by the U.S. Chamber of Commerce and was written for an audience that included business people, government officials and anyone who found it necessary to testify before decision-making committees.  The book was published in 1982, the year I started Mercer Capital.  While it is dated in its design, much of the wisdom found in the book is not.

I read the book three or four times in the 1980s and then it disappeared from my life, only to reappear somehow last month on a shelf in my library.  I read “Testifying with Impact” again just now and will share a bit of its enlightening guidance for its intended audience, as well as for testifying experts who give video depositions and testify in court to further their professional opinions.

Testifying with Impact

The booklet begins with the idea that the objective of testimony is not to read words or testify without notes, but to communicate thoughts, ideas, and knowledge.  That idea alone helped me in my early years of testifying.  Testifying has a purpose and that purpose is communication – and persuasion.

The booklet is divided into short sections. Let’s take a look at a few ideas of each section.

Preparation

Mr. Lustberg begins his discussion of preparation for testimony by citing the well-known statistic that public speaking is the number one fear of most people. Therefore, the number one detractor from good testimony is the fear of speaking before a group.  The next factor is a lack of skill, which he says can be learned with practice.

The basics of good oral communication begin with proper breathing and learning the ability to relax.  I remembered learning how to breathe – from choir directors – by filling my diaphragm with air and then exhaling. Breathing correctly definitely helps one sing and it also helps one speak.  Lustberg provides a stretching exercise to help relax and urges speakers to be aware of tension in their bodies while they are speaking or testifying and to consciously relax on the spot.

Tailoring the Text to You

Lustberg’s first bit of advice in tailoring the text [testimony] to you is to simplify and get comfortable with what you will testify about. His advice includes the following:

• Eliminate jargon. For a business appraiser talking about EBITDA or capitalization rates or normalizing adjustments, this can be a challenge.
• Use simple, understandable words.
• Use contractions to simplify and sound conversational.
• Punctuate in thought groups.  The rhythm or speaking should be based on ideas and not individual words
• Make the speech [testimony] your own.  Get comfortable with what you are going to say.

I remember this advice from many years ago when Lustberg wrote:

Every piece of testimony should be delivered as though it’s a conversation between you and someone you like very much. You’re not reading, you’re explaining. Remember that the audience doesn’t know what you know. You’re there because you have something to say. Don’t teach it, preach it, recite it, read it, or orate it. Say it. Tell it. Explain it.

Presentation

According to the booklet, there are four keys to achieving peak performance in presenting material to relevant audiences.  These include:

1. Recognizing that all good oral communication is rooted in conversation.
2. Remembering that communication is to transfer ideas from your mind to your audience.  Anything that interferes with this smooth transfer, including distracting body and speech mannerisms, reduces effectiveness of testimony.
3. Being aware that all communication includes the speaker’s face and body as well as his or her voice.
4. Recognizing that the speaker should be pleasant and interesting to see and to hear and should convey a good attitude to the audience in order to come across as honest and sincere.

Lustberg links presentation with preparation.  Lack of preparation is obvious and distracting and will keep a testifier from communicating effectively every time.

Wrapping Up

Some of the best ideas are simple ones.  Just remembering that the objective of testimony is to deliver thoughts, ideas, and knowledge in the form of expert opinions can help those of us who provide expert testimony. The ideas are excellent for attorneys to share with their expert witnesses, as well. If you missed my previous posts on the topic, be sure to check out “10 Ideas for Giving Effective Expert Depositions” and “Recollections of My First Expert Witness Experience.”

Be well,

Chris

Reminder

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