GIVING TESTIMONY: TELLING THE TRUTH IN AN ADVERSARIAL SETTING

GIVING TESTIMONY:  TELLING THE TRUTH IN AN ADVERSARIAL SETTING

GIVING TESTIMONY: TELLING THE TRUTH IN AN ADVERSARIAL SETTING

“The experience of testifying and the aftermath have changed my life.”

--Anita Hill

Giving testimony as a fact witness at trial or a deposition need not be a life-altering experience, and it doesn’t have to be terror-inducing, either.  What it must be is truthful. How a witness conveys that truthful testimony has a lot to do with its believability, and ultimately, the credibility of the witness.  While giving testimony can be difficult, here are a few tips for fact witnesses that may help with the process. 1.     Before you testify, meet with your lawyer and ask any questions you have about the process.  Testifying in court or at a deposition can be stressful, and part of your lawyer’s job is to help prepare you for giving testimony.  Your lawyer will discuss your testimony with you and will give you instructions regarding the process, explain the role of all the participants in the process, and he or she may show you some documents. The one constant, never-changing rule is this:  Tell the truth. 2.     Dress appropriately and comfortably for the proceeding. A neat appearance and proper dress, whether testifying in court or in a deposition, are important.  Your wardrobe selection should indicate that you consider your testimony an important matter.  Many depositions are videotaped, and you want to look your best.  In any event, you do not want your clothing to be a distraction in any proceeding.  Talk to your lawyer about appropriate dress. 3.     Speak clearly and make eye contact while testifying. A court reporter will be recording your testimony verbatim, and you will need to speak clearly and slowly; don’t mumble. It is important to get a good record.  Try to be as natural as possible, and avoid profanity or slang when you testify. 4.     When asked a question, think before you speak.  Don’t interrupt. You often may anticipate the question that is coming, and there is a natural tendency to interrupt and begin answering.  This should be avoided.  When presented with a question, you should think about it before you begin your answer.  If the question calls for a “yes” or “no” answer, if at all possible, provide that response.  Only elaborate if you are asked. 5.     Listen carefully to the questions asked, and answer only the question asked. As a witness, your job is not to volunteer information, rather, it is to answer the questions that are presented to you during the trial or deposition.  Adding extra information will likely and unnecessarily prolong the process.  Let the examining attorney seek out any details through the questioning, but again, your job is not to volunteer additional information.  Be as succinct as possible to give truthful responses to the questions asked. 6.     Don’t argue with the examining attorney. If your testimony is misstated or mischaracterized in a follow-up question, you should correct the examiner; however, you should never argue with the attorney questioning you.  All arguments on your behalf should be handled by your attorney. 7.     If you don’t understand a question, ask for clarification before you give your answer. It is far better to seek clarification before responding rather than to make an assumption about what is being asked.  If the question asked is vague or unclear, say so.  It is better to get the answer right the first time you answer, instead of needing to correct it later because you misunderstood. 8.     Do not let the attorney questioning you put words in your mouth. Do not make overly broad statements or exaggerations that you may need to correct. Be particularly careful when responding to questions that begin, “would it be fair to say. . .” or “wouldn’t you agree that. . .”.  You should use your own words—this is your testimony. 9.     Take a moment and familiarize yourself with any documents that you are asked to refer to during your testimony. Even if the document appears to be one that you have seen before, make sure that it is complete (no missing pages, for example). 10. Testifying for any length of time can be tiring—breaks are allowed. Get a good night’s sleep before the day that you testify.  It’s normal to be nervous, and you’ll do a better job if you’re well-rested.  You want to be alert, attentive and of course, truthful.  You don’t want to appear tired or evasive. Deposition testimony and trial testimony have truth-telling in common, but the proceedings otherwise have a lot of differences.  The above list is not exhaustive.  Your lawyer can help you get through the process and can provide more particular instructions to help prepare you for your testimony at trial or a deposition.