Most people think they know how to testify and be a good witness in a court proceeding. After all, we all have seen hundreds of examples on TV and in Movies. The problem is that what makes good TV and good drama for a movie is terrible on an actual witness stand. No self-respecting and competent judge or opposing attorney will let you act like they do in a TV or Movie drama. You can’t make speeches, ignore questions, blurt out answers, not asked or talk over everyone. That is, you can’t without the judge coming down on you or ending up in contempt or even sitting in a jail cell.
So forget what you have seen. Usually, when you are on the witness stand, you are either testifying for yourself or someone you want to help. That means that a judge or jury will be deciding your fate or the fate of the person you want to help. So you want the judge or jury to like you and think you were a good witness. They won’t if you act as they do on TV or in a movie. Whether it is a judge or jury, they have a common goal, which is to do their duty as expeditiously as possible, make the right decision, and go home or back to work. So if your antics delay the process and cause disruption, they won’t like you, and that will affect how they gage your testimony.
So how should you testify? What qualities do make a good witness? First, let me explain that the population in general usually only hears and comprehends about forty-five percent of what they hear. Now, why is that? The reason is most of us in a conversation are thinking more about what we want to say than listening to the person talking to us. So the first skill you have to master to be a good witness is to listen to the person asking the question. Sounds easy, but it isn’t.
A witness is on the stand. He has been called to establish that Bob, his brother is a good father in his divorce case. He and Bob are close and have spent a lot of time together as families, and he knows his brother is a good father. The attorney has asked the witness his background information and is getting from the witness his employment history. He has questioned why the witness left each of his former employers. He was fired by one employer who alleged he was unethical. He doesn’t want that to come out. He thinks he should not have to answer that question.
So his mind is going a mile a minute thinking of all the possible answers and whether he should respond when it is asked. The attorney asks his next question, and the witness says, “It is an allegation only, and there is no basis to it.” The witness realizes everyone is looking at him funny, his sister-in-law is grinning at him, and his brother is angry at him. The brother’s attorney then says to the witness. “Excuse me, Mr. Anderson, do I understand your answer to my question, “Is your brother a good father?” is that it is an allegation only, and there is no basis to it?”
What happened? The answer is simple. The witness was thinking and not listening. You have one job as a witness, and that is to listen to the question and answer the question. So you have to put all your worries, concerns, assumptions, and preconceived notions aside and just concentrate on the person asking the question and just answer the question.
I am going to give you some rules to use to while testifying. If you follow the rules, you will be as good a witness as it is possible to be, and you will not be tricked or made to look bad. The rules will protect you and make you a good witness. The first custody case, I had a woman client who was on the low range of normal intelligence. She knew she was slow, so she took these rules up onto the stand on a 3 x 5 card and followed them exactly. She had an excellent attorney grill her for hours, and he never got to her. She never gave a wrong answer or made a mistake. He noticed that she kept glancing at the card, unusually before she answered a question. Frustrated, he asked her what the card was in her hand. She said. “It is what Mr. Mansfield told me to do today.”
He got a look of triumph on his face and asked to see the 3 x 5 card because. She handed it to him and he read it and handed it back to her. He never brought it up again. I could tell the jury was dying to know what was on the card so when I had a chance to redirect, my first question was: “Mrs. Client please read what is on the card in your hand.” What she read was
- Tell the truth, and just the truth.
- Pay attention, listen to the question carefully, and just answer the question.
- Do not volunteer information.
- Give brief and concise answers. If an answer is yes or no then say yes or no.
- If you don’t know or don’t remember the answer to a question, then that is the answer.
- Use approximates when answering dates, numbers, distance, etc.
- Be polite, don’t react, and be respectful.
As she read off the above rules, the whole jury smiled at her, and many turned and smiled at me. She was a good witness, and we won the case. She was the best witness I had in all my years as an attorney until I represented a professional actress at a deposition who manage with much higher intelligence and years of training as an actress to do better.
In fact, normally, the more intelligent and the bigger the ego of a witness, the worst they are if not schooled. They get into verbal battles with the opposing attorney and volunteer what they think is helpful information, and it isn’t. About eighty to eight-five percent of the time, the law makes sense, and what you think will be beneficial probably is. But due to specific rules of evidence, types of causes of action and other reasons twenty to fifteen percent of the time if you volunteer information you think is helpful it not only isn’t but it can lose you, your case. So the only safe way to testify is don’t volunteer.
I have had two clients volunteer information in my 33 years during a trial, which in one case the judge used to find against him, and in another case, the jury used the information volunteered by my client to find against him. Neither attorney asked for the information until my clients volunteered the information. I thought I had dodged a bullet because the other attorneys had not been smart enough to ask the questions. But in each case, my client did it for them and committed legal suicide.
Now all of the rules are encompassed in the second rule, which is:
PAY ATTENTION, LISTEN TO THE QUESTION CAREFULLY AND JUST ANSWER THE QUESTION.
What I mean when I say all of the rules are encompassed in the second rule is that if you listen to the question and just answer the questions, then you are telling the truth. If you just answer the question, you are not volunteering and so on. So if you remember and only applied this rule, you would comply with all of the others. But I am going to go into more detail and hope that this helps you when you are on the witness stand.
1. TELL THE TRUTH AND JUST THE TRUTH. First, it’s your moral and legal responsibility and duty to do this. Most witnesses who get in trouble in a deposition or in court do so because they don’t tell the truth or the whole truth. You don’t have to remember what you said if you tell the truth. Even witnesses who normally are truthful will often try to shade an answer or leave something out to help themselves or one of the parties. They figure it is a small thing and won’t matter. Don’t do this. If you get caught in a little lie, the judge and jury will feel you are lying about 90% of your testimony. So even if 98% of your testimony was truthful, if you lie about 2%, the other 98% gets disregarded. Finally, you or the party you are trying to help will be punished for lying when the judge or jury makes their decision.
2. PAY ATTENTION AND LISTEN TO THE QUESTION CAREFULLY AND JUST ANSWER THE QUESTIONED ASKED. This is where 90% of the witnesses fail and are bad witnesses. Don’t think about the effect of your answer. Just think what is the answer and just give that answer. Most people are thinking about, “Why did he ask that?” “What will they think when I say …?” etc. DON’T DO THIS! The key to this is listen, and you can’t be listening if you are worried about what is being asked. LISTEN TO THE QUESTION.
A large percentage of the time, a witness will give a wrong answer because they were thinking or daydreaming and DO NOT EVEN HEAR THE QUESTION AND THEY ANSWER THE WRONG QUESTION. If you listen, you will hear if they ask a stupid question. If you are not listening, you will not answer stupid questions and sound stupid. Example “Isn’t it true that you have the worst tardy record because you are out trying to make the most sales in the company?” If you are not listening, you may simply say “Yes” to this question, when the answer is “No.” If you pay attention and listen, you will give the right answer.
If I ask you how much you weigh, the answer pops into your head. If I ask you what is your birth date, the answer pops into your head. This is true every time. Even if I ask you what is the capital of Bolivia, the answer pops into your head. Probably that answer is “I don’t know.” That is the right answer as a witness. I don’t know the capital of Bolivia either, by the way.
Never answer more than what is asked. If they ask, were you late and the answer is yes. Say “Yes,” do not tell them why you were late. As strange as it may seem, the best attorneys in the world will fail to ask such basic questions and they won’t know the answer unless you tell them what they did not ask. So don’t do it. Even if you think the answer will help the case. If you try to play attorney and verbally duel with the opposing counsel or judge, you will not be a good witness. I have had two cases lost because my client volunteered information they thought would be helpful, which the other attorney was not smart enough to ask. The information they volunteered caused them to lose. If they had just answered the questions, they would have won the trial.
When you are asked a question, the answer always pops into your head. If I ask how old you are, the answer will pop in your head. You can’t not think about it, if you try. That answer that pops in your head is the answer. Do not worry about why a question was asked. If you give the answer that pops into your head and only that answer, you will be a good witness. The answer does have to be framed properly. If what pop’s into your head is “Hell no!” just say no. Your answers always need to be without profanity or framed in a snarky manner.
If you do not understand or hear the question, do not answer the question. Do not answer a multi-part question. Make them repeat the question if you did not hear it or did not understand, or break it down into separate questions if it is multi-part. If it is a confusing question or if it has double negatives, or is just stupid, make them clarify it. Tell them that you did not understand it, that you are nervous and ask them to break it down, simplify it, repeat or rephrase it. Do not be afraid to take your time and think if it is necessary. But do so only if it is necessary to understand what was asked or to remember the answer. Don’t try to answer with legal words or in a legal manner. Use your own words. LISTEN, LISTEN AND LISTEN, AND THEN JUST ANSWER THE QUESTION AND NOTHING MORE.
3. DO NOT VOLUNTEER ANYTHING. People feel compelled to tell their side of the story and will volunteer that side when they are asked a question they think is unfair or slanted. Don’t do it! JUST ANSWER THE QUESTION AND NOTHING MORE. You will have to trust your attorney to bring your side out when they ask you questions. Further, in a deposition, if they don’t ask, we don’t want them to know our side. Last it causes delay and makes you look like an uncooperative witness. This will get the judge and jury against you. Again no matter how much you are tempted, do not volunteer. For the third time, I have had two cases lost, because my client added information (they volunteered) they thought would be helpful, which the other attorney was not smart enough to ask. Volunteering is helping the other side.
4. GIVE BRIEF AND CONCISE ANSWERS. Answer with a “Yes” or “No” if appropriate. Even if it hurts, even if you feel the question was unfair, answer “Yes” or “No” if it is the truth. You have to trust me to bring out the other side. If the answer is not yes or no, I want you to keep your answers short and concise. If you give a long answer, I guarantee that you will be violating rule 2 or 3. If you are asked what time you left for work, and the answer is 8:00 o’clock, then that is the answer. Do not take five minutes and give your full routine for getting ready for work to explain why you leave at 8:00 o’clock. Give short, concise answers that answer the question.
If they want more, they will ask for it. Even very complex fact situations and concepts can be stated very simple. Why should you have custody? Answer, “I can and do meet the needs of my child better than my spouse, I can provide a safer, healthier and more nurturing environment for them and they prefer to live with me.” “How did Mr. Smith breach the contract? Answer, “Mr. Smith failed to deliver the materials on time and failed to provide the materials as ordered.” Most people asked these questions will ramble on for 20 minutes, and their answers have little effect. BRIEF AND CONCISE. The judge or jury will get bored if you long answers and punish you or will reward you if you are a brief and concise witness.
5. IF THE ANSWER IS “I DON’T REMEMBER” OR “I DON’T KNOW”, THEN THAT IS THE ANSWER. One of the strange dynamics of being a witness is most people think they have failed or have come up short if they answer, “I don’t remember” or “I don’t know”. Good witnesses answer “I don’t remember” or “I don’t know” when they don’t know or remember. If you remember everything, then you are lying. No one remembers some of the key events and facts, even on the most memorable days. If your lawsuit is about something that was emotionally upsetting, a bad business deal, trauma, or other event you will not remember what may seem to be key facts. SO WHAT. If you don’t remember, that is the answer.
You are obligated to tell the truth. When I ask you what did you have for lunch and where on May 21st two years ago, and you don’t remember then that should be the answer. If I ask what color shirt you had on the day your father died or how many people were present in the room when Mary was fired, and you don’t remember, then that is your answer, You don’t remember. Nothing else. If I or the other attorney ask this type of question and what pops into your mind is that you do not remember. Then that is what you say. Do not be embarrassed about not remembering. The jury will understand.
Even if the other attorney asks you ten questions in a row that you have to answer, I do not remember, and he asks one more question, and you still do not remember, the answer is “I do not remember.” You can also use “I don’t know” or the Oliver North and Hilary Clinton answer “I don’t recall”. Just use one of these if you do not remember or do not know the answer.
DO NOT GUESS AND DO NOT EXTRAPOLATE. Extrapolate is when you guess based on past history or events. If you always leave for work at 8:00 o;clock and you are asked what time you left for work two years ago on a certain date. You might be tempted to say 8:00 o’clock based on your past behavior and habits. That is extrapolating. You are not lying, but you are guessing. If it turns out to be wrong, the judge and jury will think you were lying, so DO NOT DO IT. If you do not remember or know, then the answer is I do not remember, or I don’t know. If you feel you have to answer based on your normal practice, then say, “I do not remember what time I left for work on that particular day, but I normally leave for work at 8:00 o’clock, but I have no memory of that particular day.”
6. USE APPROXIMATES. As a general rule, Men are terrible on dates, and women are terrible on distances. The answer is do not state anything in exact terms unless you absolutely know it. You know your name when you were born etc. Further, do not try to be funny and say I don’t remember being born, but it has been reported to me that I was born on _____ date. The judge and jury will hate your guts if you give more than answer or one like it. You are wasting their time. The reason is because then they have to ask you three more questions to get the answer, and pretty soon, they realize you are delaying things, and they want out of there. If asked what time was the meeting. About nine in the morning. Or midmorning. It was about the 4th or 5th day of the month. I think he was standing about ten to fifteen feet away, etc. etc. Do not get tied down to an exact answer and then later be proved wrong.
7. DON’T REACT, BE POLITE AND RESPECTFUL. If you are mad or upset while testifying you are losing. Sit still, look at the person asking questions, reply calmly and without negative references, name calling, snide remarks, racial slurs, references to the questioners bad questions, etc. “Yes sir, and no Mam.” Speak up. Do not fidget. If the judge or jury thinks you are a smart ass, they have a real easy way of punishing you. I have seen a number of cases where the person lost because they were not liked by the jury, and they should not have lost.
I have also seen a number of cases where the person won because they were liked by the jury and they should not have won. Be yourself and be pleasant unless the first excludes the second, then be pleasant. IT IS MUCH BETTER TO NOT REACT THAN TO SHOW ANGER, DISTRESS, ETC. AT A QUESTION OR OTHER WITNESS LYING OR THE OTHER ATTORNEY INFERRING OR ACCUSING YOU OF LYING OR SOME OTHER NEGATIVE QUALITY. If you are at the counsel table with me, do not grab my arm or say loudly, “He is lying!” or some other loud comment. It won’t help, and it probably will hurt. Make notes and don’t react to what a witness or the other attorney is saying. If you are whispering in my ear, I can not hear what is going on with the witness. So do not interrupt, only communicate with me when a witness is being questioned, or the attorneys are arguing to the court by a written note, which I may not use or react to.
The good news is I guarantee that if you follow the above rules, that you will be a good witness and that you will not be tricked. People who do badly on the witness stand, are normally lying, or they violate rules 2 through 7. If you follow rules 1 through 7, you will be a good witness, and you will not be tricked. Remember, that the number one reason people are bad witnesses are that they do not listen and just answer the question. All of the other rules are encompassed in this simple statement LISTEN TO THE QUESTION AND JUST ANSWER THE QUESTION!! It is that simple. If you follow the rules, it does not mean that some answers will not hurt, because every case will have some bad facts, but it does mean and they will have the least effect because of how you answer the questions that bring out the bad facts.
I hope this helps and if you want any more information or want to ask me a question then don’t hesitate to contact me at 817-282-3450 or my email: firstname.lastname@example.org