To Testify or Not to Testify – Is There Pending Question?

To Testify or Not to Testify – Is There Pending Question?

Thomas Stilp, JD, MBA/MM, LLM, MSC

All litigation depends, in some form, on testimony.  Testimony is the cornerstone of trials.

Experienced attorneys recognize there are four testimonial attributes for any witness: (1) memory, or the ability to recall accurately what was said and what happened; (2) observation, or the ability to see and hear what occurred and who said what to whom; (3) veracity, or the ability to be truthful; and (4) narration, or the ability to accurately put into words a description of what the witness saw and heard.

In discussing the shortcomings of the current litigation system that relies on eye-witness testimony, people do not have superhuman recall and powers of observation.  The notion that through live testimony, we can assess and determine reliability of events and conversations to know what actually occurred may be flawed given the imperfect recollection, perception and observation of human beings.

Consider the celebrated experiment by psychiatrists. Test participants were asked to look at a video recording of basketball players passing the ball to one another and count the number of passes.  As incredible as it sounds, to the surprise of the experimenters, many viewers failed to notice a man in a gorilla suit walking with an umbrella.*

Having taken over 150 cases to trial, we develop an internal sense of what works and what does not during a trial.  An good attorney will know what to do to bring out the inherent problems with witness testimony.

*Gorilla suit story based on Richard Susskind, The End of Lawyers? Oxford Univ Press 2010, pp. 223 (noted legal services expert).