Source of the following article Persuasive Litigator.
By Dr. Ken Broda-Bahm:
Testifying is difficult enough already. You’re trying to give complete and honest answers while a trained attorney is asking hypotheticals, making distinctions, digging into details, sometimes applying arcane legal standards and language, and all the while, hoping to trip you up. Now, imagine trying to do that in a language that isn’t your mother tongue. You know English well enough to be fully competent at work and in conversations, but this – a minefield of language tricks and traps – is something different. When I work with witnesses who are nonnative English speakers, I get that: It is scary. But, more often than not, I also emphasize, “You can do it…and you may even have one important advantage.”
In our increasingly global society, it is becoming common that some witnesses in American courts will be ESL – English as a Second Language – witnesses. And for some of those witnesses, it isn’t “Second,” it is third or fourth. Doctors, executives, and even experts will sometimes immigrate to this country. Sometimes they will need translation (and if they do use it, simultaneous translation is the better option). But for those who are comfortable working and conversing in English, I think they should aim for testifying in English as well, even if the testimony itself isn’t comfortable. In my experience, the witness will initially have far too high a standard for their own language competence, and will think that barely noticeable disfluencies or issues over word choice should disqualify them from testifying in English. I disagree. In contrast, I think it is likely that the multilingual witness might even have some processing habits that can make them a better witness.
In most cases, when a witness is able to meet with us and speak English during the preparation sessions, that witness should also testify in English without the need for translation. Even if it isn’t perfect, jurors will see it as more credible in English and will appreciate the witness for making an effort. But, I do think there are some considerations that should be applied.
Explain Your Discomfort
When a witness is nervous, it is common to want to get that on record. Particularly in direct examination in trial, your own lawyer can ask, “Are you a little nervous right now?” In your answer, let the judge or jury know that you are nervous, not just about the process of testifying, but also with the additional challenge of testifying in a nonnative tongue. Those who are bilingual on the jury will understand, and there’s at least some chance that those who aren’t will be impressed. In either case, clarifying the source of your nervousness will help prevent it from being seen as an indication of uncertainty or lack of candor about the facts. Clarify that you are comfortable that you can answer the questions, but the language still adds a challenge.
Slow It Down and Pause
It is a common problem for all witnesses: processing and, sometimes, speaking too quickly. The witness acts as though any kind of pause is deadly and so will begin mentally forming the answers while the question is still being asked. This is called “pre-responding,” and it is a bad habit that can cause witnesses to miss some of the nuances of the question and to supply information that hasn’t been asked for. This is where nonnative speakers can actually have an edge in solving that problem: They are used to taking additional time to process the information, and that is a good thing. I think they are more likely to simply listen for understanding while the question is being asked and then pause to form a response before answering. As long as they’re reminded to continue that habit, and as long as they understand that slowing it down and adding pauses is good for the testimony, they can testify better than a multitasking native speaker.
Don’t Be Shy About Asking for a Rephrase
Opposing counsel isn’t on your side. But one area where you are at least on the same page is this: You both want a clear record. So if there is any point at which you don’t fully understand what counsel is asking, then counsel wants you to let them know that. So don’t be shy about asking for a question to be rephrased. Don’t apologize and don’t assume it reduces your credibility to ask for clarification. Just ask, “Could you rephrase the question?” Nearly always, the attorney will rephrase because they want it clear in the record that you understand what is being asked. And for the witness, just hearing the question again in different words will often correct whatever you were missing in the first version of the question.
I admire anyone who can work and converse in another language. It is impressive. But folks who can do that, can also sometimes be a little too humble about their ability to testify in that language. Usually, it is doable and effective. So acknowledge the concerns, ask for all the clarification you need, and use the advantage you already have in being a bit more deliberate and focused than someone who might take that understanding for granted.
Other Posts on Testimony Challenges:
- Testifying in Another Language? Use Simultaneous Translation
- Rehabilitate Your Lying Witness
- Cultivate Good Stress
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