10 Things You Should Know About Preparing as a Witness
Litigation is an ever increasing phenomenon in the United States and other parts of the world. With more people filing lawsuits than ever before, there is a good chance you will be called as a witness for something. But if you have never been a witness before (or have never seen the inside of a courtroom), how do you prepare?
There are a number of things to keep in mind to be a good witness, and if you follow the next 10 rules you should be prepared for almost any situation.
Next, we’ll explore what it means to be a "good witness" and the go over the first three rules to follow.
Rules 1 -3
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.
Rules 4 - 6
Rule 4: Think Before Answering
Rule 4 goes hand-in-hand with the 3 previous rules. Always listen to the FULL question before you begin to answer. Take a few seconds before you respond, if you need the time. You can even ask counsel to repeat the question if you need a little more time to think about your answer. However, don’t use this technique often, as you may upset the presiding judge.
Some things to keep in mind:
Do not say "yes" if you really mean "maybe."
Do not say "no" if you really mean "I do not recall."
The word "no" means NO – absolutely not!
The word "yes" means YES – absolutely yes!
So, if certain answers are maybe, say "maybe." If opposing counsel instructs you to answer yes or no, and you cannot, then say you cannot answer yes or no. Sometimes opposing counsel may phrase a question where you may want to answer yes or no, but a fact or two may require you to answer "maybe" or something else.
Let’s go over an example:
Counsel: Have you ever met a person named Angela Merkel?
Witness: I may have.
This could be a good response if you are not absolutely sure as to whether you have met such a person. If Angela Merkel is your best friend, then definitely respond "yes," but offer nothing more. In other words, do not tell opposing counsel Angela is your best friend unless you are specifically asked if she is your best friend.
Rule 5: Prepare Before You Testify.
You should review any documents, statements, or other records you may have made that opposing counsel may question you about. This does not mean you should prepare like a test. What is means is that you should go over the relevant facts that opposing counsel will likely question you about. Then, you’ll have an idea of what opposing counsel might ask and this should help to limit any surprises. Still, even with preparation, you can never know with 100% certainty what opposing counsel will ask – but you can often come fairly close with solid preparation.
Your lawyer should go over with you what you may or may not be asked. However, your lawyer is not allowed to coach you – i.e. this means your lawyer cannot tell you what to say. Coaching witnesses is against the law.
Rule 6: Do Not Argue.
Remember this: Lawyers argue and witnesses testify.
Follow the rules stated in this article, and answer opposing counsel’s questions to the best of your ability. It is your lawyer’s job to object to hostile, offensive, or intimidating questions directed at you. Do not shout back at opposing counsel, even if he or she tries to get "under your skin." Be as professional as possible.
Keep in mind that you may still be required to answer questions that make you feel uncomfortable. As long as a question is relevant and no objections exist to combat it, you may have to answer the question. Therefore, make sure to prepare mentally for any questions you (and your lawyer) believe you may have to respond to. It should help to calm your nerves.
Next, we’ll go over the last 4 rules to be a good witness.
Rules 7 - 10
Rule 7: Correct Your Mistakes
No one is perfect and we all make mistakes. If you state something that is inaccurate, correct your mistake the first chance you get. But make sure what you said was inaccurate. Obviously, try to keep mistakes to a minimum. And remember, if you do mess up, make sure you fess up.
Rule 8: Distinguish What You Know From What You Have Been Told
What a non-party to the case (i.e. neither the plaintiff nor defendant) tells you about something, it is usually hearsay and it can often be successfully objected to. What you directly hear or see with your own senses is generally not hearsay and usually cannot be objected to. In other words, you may not have to answer a question that is based on hearsay – as long as your lawyer objects to the question. You often will have to answer a question that is based directly on what you heard, saw, smelled, felt, or tasted. If this sounds confusing, don’t worry about it. "Hearsay" can be tricky to determine, and it often takes a seasoned lawyer to understand all the ins and outs of hearsay.
For purposes of this article, let’s go over a common example to illustrate what you know from what you have been told:
You are standing at the corner of an intersection waiting to cross the street. Suddenly, a car whizzes by you, knocks over a nearby mailbox, and continues down the street out of sight. You stand there in amazement because the car nearly hit you and you barely saw the car. Later that night a few of your friends tell you that the person in the car was Al Smith. On the stand, counsel asks you the following questions:
Counsel: Were you nearly hit by a car at the corner of the intersection?
Counsel: Who was in the car?
You: I do not know.
This is the proper response. If you had answered "Al Smith," that would have been hearsay – because you heard it from your friends. There are many exceptions and exemptions to hearsay, and so your lawyer can go over the relevant hearsay exceptions and exemptions with you before you testify.
Rule 9: Do Not Guess If Asked About Statistics
If opposing counsel asks you how fast the car was going in the above example and you didn’t see it, then say you didn’t see it. If you did see the car for a moment or two, in most instances you can make an educated estimate. But make sure to emphasize this point.
Counsel: How fast was the car going?
Witness: About 35 to 45 mph.
This is a good and fair response, as long as it reflects your best memory.
Rule 10: Take Your Time and Relax
Finally, relax and take your time. This will help you with all of the above rules, especially with Rule 4 - Think Before Answering. Do whatever you need to do within reason and remember to relax.
So, now you’ve been informed about the basics in being a good witness. The rest is up to you. For more information, links and sources, click to the next page.
In this article we explored 10 things you should know when you prepare as a witness. In particular, you should: (1) tell the truth, (2) refrain from volunteering information, (3) ask if you don't understand a question, (4) think before answering, (5) prepare before you testify, (6) refrain from arguing, (7) correct any mistakes, (8) distinguish what you know from what you have been told by others, (9) refrain rom guessing about statistics, and (10) take you time and relax.
Now you should have a much better idea about how to properly prepare as a witness. Good luck and remember to maintain your composure.
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