There may be two scenarios when you might be called to testify as a witness; in a Deposition or in a Court proceeding. A Deposition generally occurs at a lawyer’s office and you are asked to answer questions. While a Deposition seems more casual, it should be treated as a Court proceeding. The questions you are asked and answers you give will be recorded by a court reporter. Regardless of whether you are deposed or are testifying in Court, there are certain steps you should take to prepare and to give the most effective testimony.
PREPARATION:
- Prior to giving testimony, it is best to review any witness statements or responses that you have made to refresh your memory.
- In the event you do not have a copy of your statement, then request one from the party that is calling you as a witness.
- If you are testifying in a Court proceeding and have given a Deposition previously, make sure that you have reviewed the Deposition transcript thoroughly.
- If you are testifying in a Court proceeding, you may wish to visit the Court in advance so that you are familiar with the location of the courthouse and the appearance of the courtroom does not appear to be strange.
- Dress appropriately. Your appearance will reflect upon you, and weight and credibility given to your testimony. Don’t chew gum.
GIVING EVIDENCE:
- You will generally be asked the questions first by the lawyer for the party who is calling you as a witness You will then be cross examined by the lawyer for the other party. Finally, the first lawyer may again ask you some questions to clarify your evidence. It is possible that the Judge may also ask you some questions.
- Hearsay evidence is generally inadmissible. You have, no doubt, heard the term “hearsay evidence” on television or in movies. This is when a statement made by another is repeated in Court. Hearsay evidence is inadmissible because you are simply repeating something that you have heard and the “observer” is not in Court to say what they have seen or heard. There are, however, exceptions to the Hearsay Rule, but it is for the lawyers who make that argument and the Court which determines whether you can be permitted to present that evidence.
- If you have ever seen a movie or tv show involving lawyers, then you have heard the word “objection”. In the event that you are testifying and one of the lawyers states an “objection”, then you should stop your testimony and allow the Judge to hear the argument between counsel as to why what you are about to say or what you have said is objectionable under the law. Do not take this personally.
- Oftentimes lawyers will repeat the same question or ask similar questions to one that was already asked. The purpose here may be to determine whether you give the same answer or change your mind. Stick to your guns!
- Sometimes a lawyer will be silent after you have given your answer, for what might feel an inordinate period of time. The purpose here may be to see if you will fill in the time and give information that you have not already provided.
- Sometimes a lawyer will appear rude and cut-off your answer. This is generally because he or she does not want to have the remainder of answer in evidence. Don’t be afraid to complete your answer.
- The lawyer for the party calling you as a witness is not allowed to ask you leading questions. The questions that will be asked will call for a narrative response. A leading question is one that suggests the answer. Hopefully, you have had adequate preparation so you know what the lawyer is seeking to draw from you in your testimony.
- The lawyer for the other party will have the opportunity to cross examine you.This lawyer will be looking to undermine your testimony and hence your credibility. You will not have advance warning of the types of questions that will be asked of you. Attempts may be made to discredit your conduct to show that you are biased or that your testimony is inconsistent.
- Make sure you know where, when, and whom you are to meet. Arrive on time so that you are not flustered. Remember many courthouses today have security like airports and it may take time to get through the front door. You may not be permitted to bring your phone into the courthouse and may have to leave it with the deputies or in a locker.
TESTIFYING:
- Tell the truth. A lie can lose the case. No matter how small or unimportant the falsehood, it could cause your entire testimony to be disbelieved. Do not stop to figure out whether your answer will help or hurt your side. Just answer the questions to best of your ability.
- Body language can be important. Sit erect and don’t slouch. Be conscious of where your hands are and keep them away from your face.
- Don’t guess – if you don’t know, say you don’t know. If you don’t remember, say you don’t remember.
- Be sure you understand the question before you answer. If you do not understand the question, ask for it to be repeated or explained. You can’t possibly give a truthful and accurate answer unless you understand the question.
- Take your time. Be certain in your mind that you are answering the question being asked. Then give the answer.
- Oftentimes an “objection” will be made to a particular question. At this time the lawyers and Judge will talk about the objection. Wait for the Court to make a ruling before answering.
- Don’t volunteer information. Answer the question that is asked and stop. If the lawyer questioning you wants more information, then he or she will ask.
- Give a clear and loud answer. Talk loud enough so that everyone can hear you. Don’t nod your head, shrug, or make gestures. Your answers must be verbal to be recorded.
- Give a definite answer when you can. There is a tendency for witnesses to hesitate in response to such questions as “are you absolutely sure?” If you are certain, be firm and don’t be afraid to say so.
- There are several trick questions that can make you look bad if you answer them the way the other lawyer hopes you will. A common trick question, “Have you talked to anybody about this case?” Of course, you have. If you say “no”, you look like a liar or a fool because everyone knows no lawyer would call you as witness without knowing what you are going to say.
- Be calm. There is also a tendency to become hostile towards lawyers. This can be distracting to you. Also, it is your job as a witness to answer questions, not to ask questions. Again, if you do not understand the question, ask the lawyer to explain it. But don’t think that you look any more credible or better because you are going toe-to-toe with the attorney asking questions.
- Be courteous. Always address the Judge as “Your Honor” and do not address the lawyers by their first names.
- Use “yes” or “no” answers when you can. Use simple words and simple sentences to tell your story. If a question cannot be answered with a“yes” or “no”, you have the right to explain your answer, but do not give your explanation before you give the “yes” or “no” answer. It often looks as if you are being cagey.
- If you misspeak or if your answer was wrong, correct it immediately. This is very important since your wrong answer can effect your credibility and your correcting an error lends some credibility.
- Evidence is based on a witness’s personal knowledge, not another’s statement. Just state what you know, saw, smelled, heard, or touched. What someone else has told you is not evidence.
- In recalling facts or a story, pick a good starting point – usually the beginning. If you start in the middle, inevitably you will forget to say something important. If describing injuries, start at your feet and work up, or your head and work down, that way you won’t forget anything.
- Be careful of questions involving distances and time. If you can make an estimate, be sure that everyone understands that you are only estimating. If you anticipate your testimony to include distance or time elements, think about them beforehand so that you can give as many specific facts as possible.
- If the Judge interrupts you, stop immediately and listen. Look the Judge in the eye and listen to what he or she is saying and answer in a direct manner. If the Judge seems angry, he or she probably is.
- Most of all, stand firm in what you know and have testified about. Give positive answers. Phrases such as “I believe”, “probably” or “I think” are not helpful.
- Lastly, testifying is hard work. It comes with anxiety and causes fatigue. Don’t let testifying cause you to act in a disrespectful, discourteous, tired, angry or careless manner.
