To be clear, testifying isn’t acting. Testifying is telling the truth. And with apologies to those who will point out that good acting is telling the truth as well, there are some important differences for the testifying witness, not least of which is that any appearance of artifice reduces credibility. Even the idea of “practicing” can be a perceived knock to a witness’s believability (which is why prep sessions are and should be protected under attorney work product doctrine). But telling the truth can be done effectively or ineffectively. The witnesses who are absolutely accurate, but still come off as hesitant, self-doubting, unclear, or evasive aren’t going to seem like they’re telling the truth. So getting to the effective truth is something that requires practice.

Good practice, however, doesn’t mean scripting. At a recent meeting with a witness preparing for trial, counsel and I were stressing the need to avoid scripted answers but also to be able to fall back on some good habits of communication. The witness, who had a background in acting, said, “I get it, I get it — I’m preparing for Improv, not a play.” At the time, I said, “That is a really good way of thinking about it…I think I’m going to steal that.” Now here I am stealing that. It is a good example because improvisational acting isn’t following a script, but, when it’s done well, it is following some good basic rules. Of course, with improv the goal is to entertain, and with testimony the goal is to effectively tell the truth. But some of the same rules apply. Drawing from a common set of improv rules (like this one, by David Alger), this post will make a few points to develop that analogy.

Say “Yes, And…” 

Improv actors need to agree with a situation, and then advance it, a notion that is shortened to “say yes, and….”  Applying the rule to testimony, it means witnesses ought to avoid just giving “Yes,” answers, especially in response to leading questions formulated by counsel on the other side. It is okay to say “Yes,” — when and only when the answer really is yes — but if you end there, then you are allowing your testimony to be written by opposing counsel. Adding the “and” doesn’t mean straying beyond the question, but does mean putting it in your own words.

Don’t Block 

In improv, “blocking” means shutting down another performer. If one actor says, “Boy, the view from this hot air balloon sure is great,” it isn’t super helpful to the scene when another actor replies, “We’re not in a hot air balloon.” That’s blocking. In testimony, that same perceived blocking effect occurs when the witness doesn’t concede what is obvious, or when the witness just seems to be evasive or is playing games with the questions. At all times, the mindset and the demeanor should be, “I’m just trying to answer the question as accurately as I can for the fact-finders.”

Focus on the Here and Now 

For the improvising actor, it is important to stay in the moment and not get bogged down in narration or backstory, instead focusing on what is happening now on the stage. For the witness, a parallel focus on the here and now means keying in on the question being asked, and not on the overall topic, and not on impressions of what they could ask, but haven’t asked. That focus also means staying in your lane in the sense of sticking with the content you can personally access based on your role, expertise, and knowledge of the facts.

Commit

In improv, it’s important not to hesitate or change your mind about a scene. Even if the idea is crazy, it will come off better if you commit to it. In testimony, of course we aren’t interested in the same flights of fancy, but we are interested in the same commitment. Before you testify, devote some thought and discussion to the best answer the facts allow, then deliver that with all the confidence and consistency you can.

Another similarity between testifying and improv is the benefit of experience. And really, unless you’re a professional witness, the way to get that experience is through practice. Sit down with counsel and others and run through the expected questions and answers. Don’t do that in order to memorize those answers, but do it in order to develop some good habits that will get you through the testimony. Break a leg.

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