Last week, I attended a webinar presented by Stevee Ashlock of The Trial Experts. The webinar, entitled “Credibility is Believability: Success in the Courtroom,” offered practical, nitty-gritty tips on how to be an effective expert witness. Ashlock shared advice about how to dress for the courtroom, use posture and gestures to enhance believability, answer questions (particularly tough or ambiguous ones), present evidence and state opinions. 

Throughout the webinar—and for the past week—I have been thinking about how much work it takes just to persuade people to believe you. No matter how impressive your credential or squeaky-clean your professional record, you have to fight for every fact and opinion. The problem is, many of the rules for effective presentation are unwritten, unspoken and unknown (at least consciously) to the average person. 

For example, Ashlock described an upright, straight posture as “non-committal.” She advised attendees to sit up straight and tall anytime lawyers probe outside their areas of expertise or when cross-examinations get a little nasty. Remember the old playground sing-song: “I am rubber. You are glue. Whatever you say bounces off me and sticks to you.” Sit up tall in court and you have the grown-up (and more serious) version. Of course, I do not mean to diminish the seriousness of cross-examination. 

By contrast, leaning forward indicates “persuasion.” Expert witnesses should lean forward when offering an opinion or stating a crucial fact.

Since attending the seminar, I have paid attention to when I or others lean forward. Every time I do it, I feel as though I am “owning” my words—whether persuading my husband that we really ought to order take-out or whispering to him about a weirdo at the next library table.

But I cannot be sure if knowing about these two postures has influenced how I use them. Maybe the webinar planted the seed. Maybe I did not always lean forward like this or sit up tall to deflect someone else’s ideas. In fact, I know that I have always felt like I was owning my ideas when I sat up tall—not deflecting someone else or refusing to commit. I associated a straight posture with pride and confidence. Then again, maybe pride and confidence are precisely why the straight posture deflects an aggressive cross-examination.

Un-Groomed Witnesses

All of this has me thinking about “formulas” for credibility and believability. If a formula of gestures, postures, attire and demeanor really does exist, what about all the “un-groomed” witnesses out there who come off a little rough around the edges? What about those who operate in a particular subculture with different signifiers for credibility? Who decided on all the “rules” for believability and credibility in the first place?

Granted, people tend to demand higher standards for expert witnesses than for regular, everyday people. But still, it seems that “everyday” people stand at a significant disadvantage when it comes to believability on the witness stand (both the literal stand in a courtroom and a figurative one in everyday life). In a world where even experts have to attend webinars and classes to groom themselves for the stand, what chances do non-experts have with the jury?

Likewise, if credibility can be codified into a series of gestures and postures, does that make it harder to sniff out inaccurate information (or even outright lies)? It reminds me a little of a crime expose program I saw recently. Reporters caught counterfeiters on tape in a “To Catch a Predator”-style bust. After all the counterfeiters had been carted off to jail, the reporters showed step-by-step how counterfeiters created fake U.S. currency. However, the show host admitted to leaving out key steps; he did not want to give viewers a free course in “Fake Money 101.”

When witnesses know the “rules” for credibility, can they exploit them? If so, how convincing will their currency look? 

One of my long-time writing friends believes the highest responsibility for writers is to explore artistic truth—not truth, mind you, but artistic truth. Memoirs and personal essays should strive for coherence, beauty and order even if it means doctoring (or dirtying up) the details to suit an aesthetic objective. 

He never advocates changing a major detail or fact, but he feels no qualms about messing with the color of a dress or screwing with chronology to suit the demands of the narrative. Of course, he leaves open the question of what constitutes minor or major details.

Other writer friends draw a line in the sand at even the most minor details (the weather on the day grandma died, the color of your sister’s sneakers) and suggest that anything short of the hard facts represents a betrayal of writer ethics and audience trust. 

Self-Incrimination

In graduate school, I worked with a mentor who suggested a sort of middle ground: incriminating ourselves by leaving clues to our biases and personal failings right there in our manuscripts. Undermining our own authority would, in turn, undermine our power. 

He wanted writers to confront their complicity in their experiences, their writing, their own misery—everything. 

That last idea appeals to me.  I like to poke holes in my own case. I like to plant the seeds of reasonable doubt about my own ideas. I consider my own point of view unreliable at best, and I drop hints in my writing in the hopes readers will feel the need to cross-examine my characters (including me).

But what about when “complicity” is itself a false construct - or at the very least, an ethically slippery one?  For example, one of my graduate-school essays depicted abuse I endured growing up, and a mentor wrote notes in the margin along these lines:

Good work here, but try to explore what you did to incite this. How were you complicit?

The scene: a five-year-old me, beaten with the buckle end of a belt.  

The very suggestion that I incited this violence set me back at least several years in my process of healing. More importantly, it seemed to me an unethical direction for the essay, given that other abuse survivors - and abusers - might read it.  I did not want to perpetuate myths that pin blame on victims. 

Perhaps “complicity” in this context has to imply something other than culpability or responsibility. Maybe it has to refer to process instead: recognizing our complicity in manufacturing truth whether we stick to the facts or not.

In Chapter 8 of The Guilt Project, “The Ballad of Mac the Pimp,” Place presents two sides of a debate about the oldest profession:

• All sex workers suffer from “false consciousness”— an internalization of patriarchal ideology. 
• On the other side stands the sex worker’s rights movement, which characterizes sex work as an option that some women choose. 

She describes a case in which an expert testified that pimps overcome the wills of their “ho’s” through force, violence and threats. In contrast, Place characterizes the pimp-ho relationship as a game. Everyone plays by the rules—and some of those rules allow pimps to sample the goods for free, so to speak. Prostitutes and pimps understand forced sex acts as part of the game. 

Is it all just a game?

I agree with Place that not all prostitutes are forced into prostitution. Some choose it.

However, I question the game analogy. If I accept the concept of the pimp-prostitute “game” and therefore accept forced sex acts as acceptable per the “rules,” I have to accept similar arguments when it comes to gang violence, organized crime, hazings—and on and on.  A mob boss might be completely and totally “ethical” within the rules of the organized crime “game,” but does that diminish his moral—not to mention, legal—guilt or responsibility when he whacks a hapless underboss or associate in his organization? 

Which is where my mob analogy falls apart. Unlike sex crimes, the crime of murder does not typically involve questions of consent (one famous cannibalism case aside). Unless, of course, you accept that mobsters consent to the possibility of being murdered.

What do you think? Does the prostitute-pimp relationship complicate questions about consent?