To be a "good witness" means to be prepared for whatever you may be asked by a lawyer or judge. As a witness, you may be called for a jury trial, deposition or something else like arbitration. You will likely have to answer questions from a non-adverse counsel (e.g. your counsel) and an adverse/opposing counsel. A "non-adverse" counsel means that he or she is on your side. An "adverse" or "opposing" counsel means that he is opposed to your position. Both a "non-adverse" and "adverse" counsel can ask questions to a witness.
You should follow the rules in this article when answering questions from both your counsel and opposing counsel. However, these rules will likely be most beneficial when dealing with opposing counsel. Your counsel is not out to "get you" or trick you. However, opposing counsel’s job is to further the other side’s case – which is often in opposition to what you will be testifying to.
Rule 1: Tell the Truth
Rule 1, by far, is the most fundamental rule of all. Make sure to always TELL THE TRUTH. Before you can testify as a witness you will have to take an oath to tell the truth. You’ve heard the oath (at least on TV), "Do you promise to tell the whole truth and nothing but the truth?" When the witness answers "I do," this means that he or she agrees not to lie. Deliberately lying while testifying under oath is called perjury. Witnesses convicted of perjury can be subject to civil and criminal penalties, including jail.
Telling the truth may not be a problem for many people. But many people err on the other side – they give more information that what they are asked. This is bad for many reasons, but most of all because no matter how nice opposing counsel may seem, he or she are not on your side! This leads us to Rule 2.
Rule 2: Do NOT Volunteer Information
This may seem obvious, but it is perhaps one of the greatest flaws of all witnesses. This means to answer only what you are asked, and nothing else! To do this correctly it means you must LISTEN to the WHOLE question and only answer what you are asked. Following Rule 2 is often more difficult than it sounds. Many people hear the first few words of a question and automatically begin to formulate their responses.
Let’s go over a brief example to clarify. The (STOP) indicates where the witness should have quit talking:
Counsel: Please state your name for the record.
Witness: Brian Rogers
Counsel: What is your occupation
Witness: I am a mechanic (STOP) and I work in the brake room where I spend most of my time fixing auto brakes.
Counsel: Where were you on the night of August 21?
Witness: I was at the Ron’s Steakhouse. (STOP) I went there with two friends for a late night snack.
As you can see by the (STOP) signals, answer only what you are asked and nothing more! There are many reasons why a witness should only answer what he or she is asked, but one main reason sticks out: the more information a witness gives the more it may hurt your side’s case.
For example, in the last statement made by Witness above, Counsel may have not known that there were "two friends" that came along. This fact may have a tremendous bearing on the outcome of the case depending on what the case is about. If the case concerns a murder, and Witness says he never saw the killer, opposing counsel might want to question the "two friends" about Witness’s statement. The two friends may have information that incriminates Witness!
So, answer only what you are asked and nothing more.
Rule 3: If You Don’t Understand a Question, Say So.
Once again, this is common sense (but common sense isn’t always so common). If opposing counsel asks you a question you don’t understand, ask for clarification. Or if opposing counsel mumbles something and you couldn’t hear the complete question, ask to repeat the question. Often, lawyers do a poor job of phrasing questions, and a witness should never attempt to answer a question which he or she doesn’t understand.
Next, we’ll take a look at Rules 4-6 in being a good witness.