GRECT. Graham s Rules for Effective Courtroom Testimony

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1 GRECT Graham s Rules for Effective Courtroom Testimony GRECT #1 - Create a resume. Prepare your resume today. A resume is a document about who you are professionally. Your resume should include your education, training, experience, readings, writings, professional contacts and prior court qualifications. You need to conscientiously accumulate and document your past with respect to each of these issues. After you document your past history, keep it up to date. You should update this document at least twice a year, and more often if you testify a lot. You want and need a resume to maintain consistency between trials or other forums where you testify, both to maximize your impact on the trier of fact and to prepare for your future. GRECT #2 - Do the incident right. Your testimony will probably concern something you did in your particular job. It may be in civil or criminal court and, in some, cases both. You may be a party or a witness to an event. When you are involved in any incident, you must remember that there is a potential (some high, some low) that this incident may end up in court. It is imperative you handle the incident correctly. You can t change your performance after the fact. Generally, doing the job right means you followed your organization s policy and procedures. You can t follow policy if you don t know policy. You won t know it if you don t regularly review your policy manual. Finally, focus on the high-risk, low-frequency tasks in your job description that regularly end up in civil court. GRECT #3 - Fully document all incidents. In order to maximize your effectiveness at a trial, you need to have properly documented the underlying incident you are now testifying about. Your documentation on the day or night of the incident needs to be CCP (complete, consistent and within policy), and needs to include the 5 W s and the 2 H s (Who, What, Why, When, Where, How and How Many). Lawyers have a rule: If you can t attack the facts, attack the deliverer of the facts or the method of delivery. Your past and your incident documentation are going to be attacked. It is highly predictable, thus disaster is highly preventable. Create a good resume and properly document your involvement in all facets of the incident. And please stop writing report s for prosecution! Start writing reports that are factual in nature. The quality of your report should not be dependent on whether or not you think 1

2 this case will never be filed criminally. Too many cops get in too much trouble because they think this way. Please write factual reports. GRECT 4 - You ve been served - Get ready now. Testimony is a discretionary time task, but only if you use it. When you receive a subpoena, summons or other order to testify, start your preparation for this testimony immediately. Retrieve the underlying incident documentation and read it. Not once, not twice but a sufficient number of times to recall the incident. Hopefully, you did the task right, and your documentation is CCP (see why that was covered earlier?) Was there other documentation generated on this incident by your co-workers, other organizations or by you? Remember, the lawyers taking you on have the goal of impeaching you, and they go to school to learn how to do it. Comparing reports to testimony, and other reports is an easy way to impeach a witness. A full review of all reports and documentation will be of tremendous benefit to you later when you testify. And, not to beat this to death, but if you are commenting on your arrests on some social website you can bet that your words will be sorry you ever bought a computer. GRECT #5 - Review the facts now. Visit the scene of the incident and make sure you are familiar with it. You cannot be expected to know every detail of the scene, but you should be familiar with it. Familiarize yourself with the details, including distance, times, actions, statements, conditions on scene, who was present, the 5 W s and the 2 H s, and other salient facts. Bring your incident documentation with you to the scene and attempt to re-create the incident in your mind. Again, well-written documentation will be of benefit to you, better allowing you to testify honestly and completely regarding the underlying incident. GRECT #6 - Talk to your lawyer. Confer with your lawyer in advance of your testimony and tell them the complete truth about the case, even if they don t ask the right questions. For example, if your partner is now dating the person who was in the right front seat of the DUIs car, the prosecutor needs to know this. It is critical to establish a relationship with this person so that she/he can better represent your interests in the involved case. They will ask you about the incident, so your report review and scene visitation is important. Remember, your lawyer does court issues for a living and it is important for you to seek their input on what they will ask you, and even what they expect the opposing counsel to ask you. 2

3 If there is information available that is not referred to or contained in your documentation, make sure you advise your lawyer of this information, so that there are no surprises downstream. Inquire of your lawyer as to how you should dress for your appearance and follow his/her guidance. Remember, this is high frequency for a lawyer and low frequency for you so please take this seriously. GRECT #7 - Prepare, Prepare, Prepare. The day before trial or hearing, again review your documentation. Make sure you have an excellent working knowledge of your reports. If you are asked simple questions about the incident and you cannot recall these facts without referring to your report, this looks highly suspicious to a trier of fact. Remember, lawyers have a rule: If you can t attack the facts on a case, attack the deliverer of the facts or the method of delivery. Jurors also have a rule: If it is in the report, it probably happened. Conversely, if it is not in the report, it probably did not happen. Please be prepared for the line of questioning: If it is so important, why isn t in your report? This question is best countered by having a report that contains all important facts in your documentation and that report needs to be complete, consistent and done within the policies of your organization. GRECT #8 - Make a good first impression. On the day or evening of the hearing or trial, show up in plenty of time. Being late to a hearing or trial is rude and unprofessional. Look sharp, act sharp and be sharp. You are being evaluated in the parking lot of the court building, in the elevator and in the hallway. You can do your case great harm by acting like a jerk. Remember, the lawyer on the other side of the case is advising their client of how to impress the trier of fact, so ensure you are also taking it seriously. Being nervous is normal, however this case of nerves can be minimized if you are fully prepared to testify. Finally, when you are called to the stand, take it seriously. You may have done this a thousand times, but it is important that your first impression on the trier of fact is that you are a professional who behaves like a professional. GRECT #9 - Know your role in the proceeding. Remember the difference between being a witness and a party to the action. Witnesses should be impartial, and should treat each involved lawyer with a high level of courtesy and respect. Triers of fact expect parties to an action to be partial, but not offensively so. 3

4 If you do not understand a question, advise the lawyer of this courteously. If the opposing counsel is able to get to you, it sends the wrong message to the trier of fact. Watch your body language and always control your emotions. Don t answer a question before you need to. Listen very carefully. Don t testify outside your area of knowledge or experience. Testify to facts, not opinion or conjecture unless you are asked to do so. It should not be necessary to remind you to be completely honest with every question posed, but I will do so. Minor errors, omissions or misstatements can have dramatic impact on juries and judges. If you make a mistake, fix it as soon as possible. Don t be helpful to opposing counsel. Be deadly accurate and honest all the time, but do not participate in any casual conversations with jurors or opposing counsel. GRECT #10 - Learn from your experiences. Finally, don t forget the 90/70/50 rule. 90 percent of jurors get their information about life and your line of work from TV. 70 percent make up their mind on a case quickly, sometimes in the first hour. 50 percent think you would lie to further your case or protect yourself. Lawyers go to school to exploit this 90/70/50 rule. What can you do? As with any other incident you encounter in your particular job, there is no substitute for experience. If you do not have experience, all you have to rely on is your training. With respect to court testimony, get as much experience, either personally or vicariously, as you can. Sit in on hearings, read transcripts, and talk to lawyers and your co-workers regarding their experiences in this arena. Also, I am a big fan of continuous improvement. After each and every hearing, talk with your lawyer and seek their guidance in how to improve your performance. With experience, you can better predict what is going to happen and be prepared for it. Finally, all of your efforts on the day or night of the underlying incident are for naught if you cannot convince the trier of fact of what occurred. Do the job right, get your proof and convince the trier of fact and you have served your organization and public well. Well, that wraps it up for our brief time together. Going back to where we started today, you can win your case only by doing the job right and by taking the time to be able to prove it. Follow the above advice and you are en route to continued success. More importantly, you are removing impaired drivers from the road prior to crashes and that is what it is all about. Every place I drive around our great country, I am always grateful that there are women and men out there practicing good risk management and removing impaired drivers from the road before they cross the double yellow lines and hit me head-on, or T-Bone me in an intersection. Thanks for your work in this regard. 4

5 Also, at the top of the day I mentioned being safe in your job. Safety in vehicle code operations starts with being a responsible, defensive driver wearing your seatbelt. Also, make sure you are well rested, stay off the darn cell phone and any other distracting device, and pay attention to your surroundings. Your personal safety on traffic stops is better helped by making right-side approaches whenever possible and practical. You are the future leaders of our profession, so please take the extra time to work safely. THANKS FOR YOUR ATTENTION TODAY; ABOVE ALL, BE SAFE! Gordon Graham ggraham@lexipol.com Or my personal office at: