When Will You Be Asked to Testify? Depositions Held during the discovery phase of litigation. Opposing attorney asks questions. Objections taken but not ruled on. Administrative Hearings Mini-trials. You are testifying to a hearing officer. Trial Finder of fact can be either jury or judge.
Who are you testifying for? Testimony should always be geared toward the finder of fact. Deposition – Jury Administrative Hearing – Hearing Officer Trial – Judge or Jury Never be concerned with convincing the questioner.
Procedure Direct Examination – Your Attorney Cross Examination – Opposing Counsel Re-direct Examination – Your Attorney
BE AWARE YOU ARE BEING JUDGED BEFORE YOU SPEAK A WORD
Appearances Matter Wear your uniform. Carry yourself in a confident manner. No slouching. Do not be afraid of eye contact. Be attentive and alert. Avoid side-conversations. Avoid chewing gum. Appear calm and collected.
Always Be Courteous Do not argue with the questioner. Do not display signs of hostility. Do not get angry or lose your temper. If your counsel instructs you not to respond to a question, do not respond even if you think it would be helpful.
TELL THE TRUTH Do you solemnly promise to tell the truth, the whole truth, and nothing but the truth?
Always, always, always be honest with your lawyer. We can’t defend against something we don’t know about. We will not judge you. If you don’t tell the truth, eventually some detail will slip and your credibility will be seriously damaged. It is much easier to remember only one version of the story. If you get caught in a lie, it will not be possible to repair your image.
Embarrassing Information If there is something embarrassing, discuss it candidly with your attorney. Never say something because you think it is what your attorney wants to hear. Leave the C.Y.A. attitude at the door. Your attorney can help you to formulate a position on the matter. DO NOT allow your attorney to be surprised at deposition, hearing, or trial.
Nervous? If you are nervous, alert your attorney before you go to testify. A lot of nervousness can be eliminated through witness preparation.
Do Not Answer Unless You Understand The Question Do no be afraid to ask for clarification or inform the individual asking the questions that you do not understand the question
Ask for clarification if needed Lawyer: “Now isn’t it true that on the 5 th of November last year, you rode naked through the streets on top of a dustcart, letting off fireworks, and singing ‘I did it my way’ loudly?” Witness: “What was the date again?”
Listen to the Question. Understand the Question. Listen carefully to all questions asked of you. If you do not understand a question, ask for it to be repeated or rephrased. Make sure only one question is being asked. Do not answer a question you do not understand. Do not guess at an answer – politely say you don’t know.
Once a question is asked… Pause before you answer the question. This will give your attorney time to make an objection. If you have already started talking and your attorney interrupts, stop speaking immediately.
If the question is unexpected, DO NOT PANIC AND LOOK TO YOUR ATTORNEY FOR HELP. Deal with the question as best you can.
Providing Your Answer Answer only the question asked. Do not anticipate questions. Do not volunteer information. Answer the question directly – do not avoid it. Keep your answers short. Use “yes” and “no” if at all possible. Avoid making speeches. If possible, go back to your regulations.
“I don’t know.” It is okay to say “I don’t know.” This assumes you really do not know (it goes back to the truth thing). If you do not remember, it is okay to say “as best I can remember…”
DO NOT GUESS Never guess at an answer or speculate. Remember that everything must be based on personal knowledge. Do not give an opinion unless it is specifically asked for. Do not be concerned about “looking” bad if you do not know an answer.
Documents It is okay to ask to see a document referred to by the questioner. Read all documents completely. It is okay if you are not familiar with a document – just say so. Do not answer unless familiar with the document. Do not guess about what the author was trying to convey. Be wary if asked only about certain pages.
DO NOT bring any documents with you to deposition, hearing, or trial unless approved by your attorney.
Always be aware if a questioner… …Is overly friendly or tries to establish common ground with you. Do not become too comfortable – keep aware.
More Tips Pay attention to objections made by your attorney. Sometimes your attorney is trying to alert you that there is a problem with the question. NEVER interrupt a judge or hearing officer.