There are several concepts that are important for every potential witness to understand in order to have a level of comfort with giving testimony. There are many factors that can impact your credibility. Consideration and application of the tools and concepts in this paper will help you prepare to be a witness.
Overview of the Trial Process
Legal disputes that are not negotiated and settled by agreement are resolved by trial. Trial involves the presentation of evidence to a decision-maker in a question-and-answer format. Evidence can include photos, recordings, maps, and other tangible items, but most evidence is simply witness testimony. Witness testimony is the answers witnesses give to questions asked by the attorneys (and sometimes the judge). Depending on the type of case and certain decisions made by the parties prior to the trial, the decision-maker during the trial will be either a single judge or a jury made up of several lay people from the community. Lawyers are only permitted to talk about evidence, and the decision-maker is only permitted to make its decision based on evidence. The presentation of evidence at trial occurs through the testimony of witnesses in response to questions from lawyers. Lawyers talk a lot and play a role in shaping the evidence by asking (and not asking) certain questions, but what lawyers say is not evidence. Because the decision-maker can only rely on evidence to make its decision, and because most evidence is witness testimony, testimony is the most important part of every trial.
Keep Things as Simple as Possible
Over the last three decades, psychologists have made significant breakthroughs in research about how humans make decisions. All of us, every human being, possess our own worldview and biases developed and shaped by our individual upbringing and life experiences. Research has confirmed and re-confirmed that humans are worse decision-makers than we think we are, and our decisions are subject to manipulation through the power of suggestion, our natural biases, and mental reactions to certain suggestions and stimulation.
Here is an example about how humans make decisions:
A bat and a ball cost $1.10 in total.
The bat costs $1.00 more than the ball.
How much does the ball cost?
Take a minute to think about it …
Many people respond by saying that the ball must cost 10 cents. Is this the answer that you came up with? Although this response intuitively springs to mind, it is incorrect. If the ball cost 10 cents and the bat costs $1.00 more than the ball, then the bat would cost $1.10 for a grand total of $1.20. The correct answer to this problem is that the ball costs 5 cents and the bat costs — at a dollar more — $1.05 for a grand total of $1.10. What does this mean for you? The human brain takes little shortcuts to make snap decisions. We work with psychologists and consultants to prepare your case in a way that will make sense to the mind of the decision-maker. Generally, simplifying a case and reducing it to its most essential facts and story is better than complicating a case.
What this means for a witness: don't try to use big words. Speak naturally and conversationally, in a normal tone that everyone can hear. Don't try to tell the whole story in response to one question. Trust the process and answer the questions that you are asked, and only the questions you are asked, one question and answer at a time.
Credibility is the Most Important Concept for any Trial
Every trial is ultimately about credibility. Trials involve a dispute between at least two entities about facts in dispute. The decision-maker will choose which set of facts, or which “story,” is acceptable or more likely true. Over the course of the trial, the decision-maker will consciously and subconsciously assess the credibility of the lawyers, the credibility of the story, and the credibility of each witness. The testimony of witnesses who are unprepared or who behave in a socially unacceptable way may be completely disregarded by the decision-maker if the decision-maker decides that witness should not be believed, even if what the witness is saying is actually true. Everything that the witness does and says should be viewed through the lens of how it may impact the credibility of the witness as viewed by the judge or the jury.
Feeling Anxious is Normal
A typical witness should feel a degree of anxiety as trial approaches. Testimony involves a number of unknowns - how long the witness will be on the stand, what questions will be asked by the attorneys, how much of the witness’s past, including any previous bad decisions, will be brought up, and speaking in public in an open courtroom to a group of strangers, some of whom may be skeptical or even openly hostile to the witness. Studies have shown that most Americans fear public speaking more than heights, snakes, and even drowning.
Anxiety is a normal feeling. The fight-or-flight response is a natural, physiological human reaction to a perceived harmful event or threat. Witness anxiety can be reduced by recognizing that anxiety is a normal human feeling, understanding the trial process, and by becoming familiar with the issues at trial and the topics over which the witness will be questioned.
The Most Important Concept: Know Your Audience
The most important concept for every witness to understand is who the decision-maker is. The judge or the jury is the decision-maker. Evidence is presented through a question-and-answer format, but typically the lawyers asking the question already know or reasonably anticipate the answer to the question. The witness should make a conscious effort to look at the decision-maker and make eye contact when answering questions. Eye contact signals witness awareness of the decision-maker. Friendly eye contact enhances perceived credibility. It also reinforces to the witness that the information being delivered is actually intended for the decision-maker rather than for the lawyer asking the question. Finally, eye contact with the decision-maker can help the witness deal with hostile questions from an aggressive adversarial lawyer — look at the lawyer and listen to the question, then look at the judge or the jury and answer it in a calm tone. This is easier said than done and may require some practice, as our natural tendency is to answer the questioner, but you should keep in mind that the questioner is not the decision-maker, and the information you have to share is meant for the decision-maker only.
Unless you are testifying as an expert witness, you only will be asked questions about things you have perceived with your senses: what you saw, heard, smelled, and felt, as well as things you did or said. This is called "personal knowledge," as opposed to guessing or repeating what you were told but did not actually see or experience yourself. Do not overreach in your answers. Do not guess. Do not assume. You will unnecessarily decrease your credibility if you make assumptions or testify about things that you did not personally perceive with your own senses. However, you can make reasonable inferences based upon your observations. There is a famous story involving Abraham Lincoln when he was a trial lawyer. Lincoln was defending a fellow accused of biting off another man’s ear during a fight. On cross-examination, Lincoln asked the prosecution's only witness if he had actually seen the defendant bite off the ear and the witness said “No.” Lincoln then asked, “Well then how do you know he bit it off?” The witness replied, “I saw him spit it out!” The witness made a reasonable inference based on his perception.
Do listen carefully to the question
Don’t guess or make assumptions
Do be aware of what is going on in the room, giving most of your attention to the decision-maker
Don’t speak after a lawyer says “Objection” until you’re informed about what to do
Do ask for clarification if you do not understand a word or a question
Don’t use sarcasm or a rude tone
Do dress respectfully, modestly and comfortably
Don’t chew gum or candy when testifying
Do answer each question truthfully
Don’t answer falsely under any circumstances. Don’t say something that isn’t true even if you feel that is the answer that is expected or that the questioner wants to hear
The Two Ways Lawyers Ask Questions
There are two types of questions: open-ended questions and leading questions. Open-ended questions use the words “who?” “what?” “how?” “why?” “when?” “where?” and “explain.” Open-ended questions cannot be answered with a simple yes or no. The purpose of open-ended questions is to ensure that it is the witness who delivers the information to the decision-maker, rather than the lawyer. Generally, the lawyer who first calls a witness to the stand is required to use open-ended questions.
Conversely, leading questions are more pointed questions. When leading questions are properly framed by a lawyer, the correct answer will either be a yes or a no. Leading questions are used by lawyers during cross-examination. The lawyer is effectively allowed to deliver the information through the use of leading questions. As the witness may be answering only yes or no, there are less opportunities for the witness to connect with the decision-maker with eye contact. The witness should listen carefully to each question to ensure that witness understands the question or the assertion made by the lawyer.
You will be perceived as more credible if you behave as your natural self and if you show an appropriate level of respect. Sarcasm and humor are generally ineffective and unwelcome. Sometimes lawyers engage in bad behavior and use sarcasm, misquote witness testimony and even raise their voices. You are more likely to preserve your credibility if you do not engage in the same bad behavior. On cross-examination, lawyers are allowed to ask witnesses “leading questions” to which the answer is only yes or no. You should answer those questions truthfully with a yes or no. During a long sequence of such questions, you may use different words to make the same answer to avoid sounding repetitive or robotic. Alternative versions of yes are “that’s true,” “that is correct,” “that is what happened, or “that’s right.” Alternative versions to no are, “that is not true,” “no, that is incorrect,” "that is not what happened," or “that is false.”
Listen Carefully to Each Question
Some lawyers try to use false logic or make false equivalency to manipulate a witness into agreeing with their side. They may ask several questions, each of which you will agree is true, then ask a conclusory or summary question suggesting that if the previous questions were all true then the final question must be true as well. Listen to each question separately. You should not answer yes if the answer is no, even if your answers to the previous questions were all yes. You should not ever agree with a false assertion by anyone, no matter how many times the lawyer may try to circle back to the false assertion with different types of questions.
Don't Get In A Hurry
As trials are extraordinary situations that cause anxiety, it may seem like time moves differently in the courtroom. Many courtrooms do not have clocks on the walls. It is important that you listen to each question carefully. Do not get in a hurry and give the answer that you think will satisfy the lawyer so you can finish testifying. If you need a drink of water or a break, you may ask the judge; however, if a question is pending, you will be required to answer the question before any break. You may also be instructed not to discuss your testimony with anyone during the break. The judge even has the discretion to prohibit you from discussing your testimony with your attorney during a break.
Be Aware of Commotion in the Courtroom
Judges and juries are human beings. They are not perfect. Courthouses are busy places. When testifying, read the room. Be aware of what is going on. If there is a distraction or an interruption, stop talking until the decision-maker is no longer distracted. If you continue to try to talk while something is taking place that disrupts the trial, the impact of your testimony will be reduced or even eliminated. Once the disruption subsides, the lawyer or the judge will ask you to continue with your testimony. You may even ask, “May I continue?” if you are not sure about the situation.
Make Sure You Understand the Question
Every witness has the right to a comprehensible question - a question that the witness can understand. Lawyers are not perfect and sometimes unintentionally ask confusing questions. Sometimes lawyers do this intentionally. You should not assume what the lawyer meant to say. You may state that you do not understand the question. Remember that your credibility is always at stake. Do not say that you do not understand a question simply to try to avoid answering a question that you really do understand. The audience hears the questions too and can sense the difference between you credibly saying that you do not understand a bad question versus an effort by you to avoid a question that you do not like.
Knowledge, Memory & "I don't recall"
Judges and juries understand that human memory is fallible. No memory is perfect. You may answer that you do not know if you do not know the answer to a question, and you may respond that you do not remember if you do not remember an event. Your credibility is always at stake. Do not say that you do not know something if you actually know the requested information. Do not say that you do not remember an event if you actually remember.
Every trial has a finite or limited number of witnesses and exhibits. If you are a witness, you are a potential source of valuable information for that trial. If you say that you do not know something in response to a question, you remove yourself from the trial as a source of information for that topic. Likewise, if you say that you do not remember a particular event, you remove yourself from the trial as a source of information for that event. Even if you do not remember every detail about an event (date, time, location, what you were wearing, everyone who was present), you may still have valuable information about the event, and the person calling you as a witness will want you to testify about what you remember. If you testify about the parts that you know or that you remember, you will be giving the decision-maker more information to weigh in assessing the strengths and weaknesses of each side’s case.
Dress Respectfully, Modestly and Comfortably
Trials are serious. Every courthouse will have minimum expectations for how you must dress — no cut-off jeans, sandals, sunglasses on your head, and so on. You should plan to dress comfortably and professionally. If you never wear a suit in your daily life, you may not want to wear a suit to testify, because you will feel stiff, uncomfortable and unnatural, and your posture will show it. The decision-maker will not know why you are uncomfortable and may view your discomfort as a sign that you are not being completely truthful. You should also dress consistent with your lifestyle so long as your apparel shows respect for the occasion. If you drive a wrecker or are an auto mechanic, you may wear jeans and a polo or a button-up shirt rather than a suit. If you are a homemaker, you may wear pants with a nice shirt or a dress rather than a severe business pantsuit. If you are an executive or a doctor, you may be comfortable in a suit and expected to dress as such.
If you have a health issue that may impact your testimony, you should discreetly let court staff know. Court staff and the judge will help ensure accommodations are made for you. If you do not let anyone know, the health issue and any other related factors such as medication side effects or discomfort could negatively impact your credibility simply because no one is aware.
Testifying about Documents, Recordings and Other Evidence
Tangible evidence, such as a document or photograph, is offered through witness testimony. The rules of evidence require the side who is offering the evidence to “lay a foundation” to establish that the evidence qualifies under the rules as proper evidence for the decision-maker to consider for the case. The foundation is made through the same question-and-answer format as other witness testimony. Sometimes the foundational questions may seem so obvious that they are off-putting. For example, a lawyer may hand the witness a photograph that has an exhibit sticker and ask, “I’ve handed you what is marked Exhibit 1. What is Exhibit 1?” It is not a trick question. The witness is to look at the exhibit and state what it is. “It is a photograph.” The lawyer will ask the witness follow-up questions to establish that the exhibit is appropriate for the decision-maker to receive and consider. Once the exhibit is approved by the judge as proper evidence, the decision-maker will be able to look at it and consider the exhibit for what it may mean for the outcome of the case.
Stop Talking When There is an Objection
There are many rules governing the admissibility of evidence. The rules are not intuitive. Some rules prohibit witnesses quoting third parties (hearsay), but there are exceptions to those rules. Lawyers deal with these issues in trial by making objections. When a lawyer objects, stop talking until the judge has ruled on the objection and you have been instructed that you either may or may not answer the question. Do not argue with the lawyer or with the judge.
Do Not Discuss Your Testimony With Other Witnesses Until the Trial Is Over
There is a rule that affects witness called “the rule of sequestration.” Lawyers and judges sometimes call it “The Rule.” If either lawyer or the judge invokes the rule of sequestration, then all persons who may be witnesses in the trial must sit outside the courtroom until they are called to testify. The witness may not discuss any aspect of the trial or their testimony with any other person, except they may discuss it with the lawyers for each side, until the trial is over. Violation of this rule could have severe consequences for you as a witness and could lead to the judge completely excluding you from testifying in the trial.
"Keep your answers short"
You are a witness because at least one side believes you have material information for the case. If you keep your answers short, you may frustrate the process and reduce the value of what you know.
For open-ended questions, you must balance making a responsive answer to the question against making a speech. You will not be permitted to tell everything you know in response to one question. There is a back-and-forth to the question-and-answer format. If you are answering open-ended questions properly you will be able to say what you know in a conversational way.
For leading questions, you may be more restricted in your response. Some questions may truly be answered with only Yes or No. However, some require more of a response. The questioning lawyer may try to restrict you to Yes or No, but if you are answering the question succinctly and in a way that indicates that the question is not a Yes or No answer, you may be granted some latitude.
"If you're not comfortable with the question, just say you don't recall"
Again, you are testifying for a reason. If you say you don't recall, you remove yourself as a source of information for the case. Additionally, if you say you don't recall something that you actually do remember, you are not testifying truthfully, and your credibility may be in question.
If you are in a legal dispute that may need resolution by trial, or if you may be a witness in a case, contact our firm to schedule a consultation about how we may assist you with preparing to testify. Our legal services include witness preparation for testimony. We have worked with other attorneys and law firms to assist them with trial preparation. In many circumstances, we can prepare a mock direct and cross-examination to more fully prepare you for the trial experience.