Litigation + Valuation Perspectives

Demystifying Valuation, Economic Damages + Forensic Accounting

Testifying in court – it’s not just what you say but how you say it

The trial resumed right after lunch. It was my turn to testify. I was on the witness stand about half way through my testimony when I glanced over at the jury. I did not expect to see what I saw.

This was an economic damages case for which I was asked to provide testimony by the plaintiff. The trial was in Orange County, California. It occurred several years ago, right about the time I started testifying regarding these types of matters.

When I looked over at the jury members, I was a bit rattled to see two of them sleeping – soundly. Was my testimony that uninteresting? I then peeked at the judge. To my dismay, he too, was nodding – about ready to drift off into dreamland.

The client who paid for my time on this case did not get a favorable decision from the jury. I blamed myself for not being convincing enough. The attorney with whom I was working assured me, however, that it was not my testimony that hurt the case. It was, he said, the jury’s belief that liability did not exist on the part of the defendant. The good news was that I found out later that the case was successfully appealed by my client.

After testifying on this particular case, I decided that there was a lot more to testifying than just knowing the technical side of what I would be asked to testify about. I realized that I had to engage the decision makers – whether judge or jury, enough to keep them from dozing off or becoming quite bored about what I would be saying. I also decided that I had to become a very good teacher in the courtroom.

I started making eye contact with the judge if I was testifying at a bench trial or with the jury members if it was a trial by jury. I started to be more animated – in a professional manner, and using more inflections in my voice. I also discovered something else that would eventually be quite helpful to my ability to testify successfully. I noticed that CPA experts who opposed me in court would often lose the judge or jury, because of the experts’ insistence on speaking in very technical terms. This, I thought, was the experts’ way of showing the judge or jury just how intelligent they really were; and, because they were so intelligent, they were surely the more convincing witness.

I became a teacher. I studied the body language of the jury members and the judge whenever I started my testimony. If they had a glazed look in their eyes I knew I had to make things more simple and interesting. Then when I noticed their reaction changing – such as a slight nod of the head in approval, I knew I was on the right track. I eventually found that the ability to teach the jury, or the judge, about how a difficult damages calculation worked in language that they understood, gave me an edge over expert witnesses who seemed much more technically intelligent than I, but who spoke in terms that would make Einstein wince.

In summary, I learned two very important lessons on testifying in the courtroom: 1) Engage the jury and the judge. Try doing this by eye contact that is very sincere and using some body and hand gesturing. 2) Be a teacher. Speak and explain in a manner befitting of the level of education and experience of the jury, or judge in a non-jury trial. Try not to get overly-technical with your explanations.

And, one more thing, I….. zzzzzzz.

Don Bays CPA/ABV, CVA, CFF