TESTIFYING

No one wants to be between the rock and a hard place commonly called the witness stand. But when justice beckons, it`s important to tell the truth in a credible way.

No one wants to be between the rock and a hard place commonly called the witness stand. But when justice beckons, it`s important to tell the truth in a credible way.

James R. Johnston

To many people, the thought of venturing into legal matters is threatening and distracting. This is especially true for professionals like those in dentistry, whose time away from the office easily can translate into lost production.

After all, most people are not familiar with the legal "turf" and what will be expected of them while they are inside this strange and perplexing arena. These are normal reactions when you consider that most honest, law-abiding people, committed to doing the right thing in their profession or business, probably will not have much, if any, experience in this area. For that reason, they are less likely to be familiar with what goes on inside the system.

If you become involved in any aspect of a civil litigation, you probably will join the majority of folks who will be only transient participants in this strange world, replete with a unique code of conduct and cryptic language. Let`s be optimistic and hope you will only be passing through. On the other hand, in our increasingly litigious society, one should always be prepared.

These guidelines should be helpful to prepare you, as a layperson, for what lies ahead if you become involved in a lawsuit. With all due respect, it is not unusual that attorneys do not provide this kind of enlightenment because they, like the majority of us, tend to overestimate the knowledge and experience of others. Most of the information included here was learned the hard way. Through the process of preparing for trial, I learned a lot about what it takes to win, as I did in federal court.

Getting underway

A legal action begins with a series of pretrial activities called discovery, which gives both plaintiff and defendant the opportunity to gather evidence for their case. One of the key elements in the discovery process is the giving and receiving of testimony in what is called a deposition. This is a form of oral testimony, taken from a witness while under oath, in a manner prescribed by the court. Depositions can be conducted in a law office, your home or workplace or any suitable facility agreed to by the attorneys, recorder and witness(es).

When the court reporter transcribes the testimony, it becomes part of the official court record and can be used during the course of trial. The person giving a deposition is called the deponent. Always consider a deposition to be a serious matter, because it is one of several important ways an attorney can discover the facts. It also can be used to discredit a witness if the trial testimony differs substantially from information given in the earlier deposition. Depositions also may be used in pretrial settlement evaluations.

If you, or one of your employees, are ever called upon to serve as a witness, here are some points to consider:

General suggestions

1. Dress neatly and in your usual attire. Expensive-looking jewelry should not be worn.

2. Be on time. The first rule of courtesy is never to be late. The waiting attorneys and court-recorder time are chargeable to the parties.

3. The second courtesy is to conduct yourself in a respectful way, using good manners throughout your testimony, even if the attorney questioning you does not. Do not appear to testify with the odor of liquor on your breath.

4. Always remain calm and be in control of your emotions. Ignore any deliberate attempts by the attorney to provoke or attack you. Do not argue with or become angry or hostile toward opposing counsel.

5. Answer all questions with a verbal response. Speak clearly and keep your hands away from your mouth. Control your body language; it could speak more convincingly than words and might send the wrong message. Avoid fidgeting or picking at your fingernails.

6. If you are subpoenaed, take it with you to the deposition or trial. If the subpoena instructs you to bring certain documents or records in your possession, do so unless your attorney instructs you otherwise.

7. Refrain from chewing gum, eating candy or antacids, smoking, joking, making wisecracks or hurling unnecessary comments. You are engaged in a lawsuit, which always is serious business and all the more so if you are the plaintiff or defendant. If you become dry-mouthed, ask for a glass of water.

8. If you are called to testify concerning records, be familiar with them. You should know what the records contain and feel free to refer to them while giving testimony.

9. Do not be hesitant to admit that you have had conferences with an attorney about the case or the testimony you give. If you are asked if you were told by your attorney what to say, do not hesitate to say that your attorney advised you to tell the truth and to be as accurate and fair in your testimony as you can be.

10. If an answer you gave during your testimony was incorrect or unclear, correct it immediately. Tell the attorney something you just said, or had said earlier, was incorrect and you will be allowed to correct your testimony.

At the trial

1. Do not discuss the case with people you do not know who are outside the courtroom or in the witness room. Their interest may be the opposite of yours, with adverse results to the case. As the old saying goes: Loose lips sink ships!

2. When called to the witness stand, walk confidently and stand up straight while taking the oath. Speak loudly and clearly so that the juror farthest away from you can hear you.

3. Look at all members of the jury, not just a few, and direct your testimony to them whenever possible. Eye contact with each juror and the judge is important. The jurors and judge must be able to hear you and then base their verdict, in part, on the content and credibility of your testimony. Try not to be wordy. Avoid the use of big words or being too technical in your language.

4. Be yourself and never memorize your testimony before you give it. Lawyers are experienced in detecting rehearsed and memorized testimony, and they will turn this practice against you.

5. Stop talking immediately when the judge or the attorney questioning you interrupts you and when the other attorney objects to what you are saying. Wait for the judge`s instruction before you continue further with testimony. Always address the judge as "your honor" or as Judge (name). Be respectful at all times.

6. Do not look at your attorney for help when you are on the stand, especially during cross-examination. If you look at the attorney for your side for approval after answering, the jury will notice and it will create doubt about your testimony. At the least, it will create a bad impression.

7. Wait until the judge dismisses you from the witness stand before you leave.

8. As a witness in court, you will not be allowed in the courtroom before or after you give testimony. An exception to this will be if you are the plaintiff or defendant or possibly if you are an official representative of an interested party.

Practical pointers

1. Tell the truth. Honesty is the best policy. If you tell the truth and tell it accurately, no one can object. It is common knowledge that a lie cannot be remembered; even more so under stress. One lie requires telling another, and so on. Attorneys are skilled in their ability to sense that a lie has been told. You are no match for them when you are in conflict with the truth.

2. Never guess at an answer. If you do not know, say you do not know or that you cannot recall at this time.

3. Listen carefully. You cannot give a truthful and accurate answer unless you fully understand the question. If you do not understand the question, ask the attorney to repeat it or to rephrase it. If ambiguous words or phrases are used, qualify these in your answers. Do not think ahead to the next question.

4. Do not volunteer information. This seems to be a common trait of conscientious witnesses - trying too hard. Answer the question that is asked and then stop. If the question can be answered with a simple "yes" or "no," do it. Do not volunteer anything unless your "yes" or "no" answer would leave your testimony in an unfavorable light.

5. Avoid using slang terms in reply, such as "yep," "nope," "yeah," "sure," "you know," "uh huh," "he/she went" (instead of he/she said) and so forth. Do not use socially unacceptable language unless it is permitted as being essential to your testimony.

6. The art of testimony cannot be reduced to a science. Testimony is people speaking to people. Remember, you are the witness and what you say is important to the outcome of the trial. This is your opportunity to present your side of the story or to share your knowledge about the facts related to the case.

7. If you are appearing as an expert witness in deposition and at trial, the attorney for the side you represent will review with you the evidence you have prepared to present and how it should be delivered to the jury. Expert witnesses should avoid any temptation or enticement from the opposing attorney to stray from their field of expertise. If you testify beyond your field of expertise, your credibility could be damaged.

It is an attorney`s job only to ask questions of a witness that are related to the case. The manner in which questions are presented to you could be upsetting or you might consider them unfair from your point of view. This is most likely to happen when you are a principal in a lawsuit. You could be shocked by the degree to which an opponent will snoop and stoop to win the case.

Do not take this personally or display resentment toward the attorney or his/her manner. The attorney`s approach may be to deliberately get under your skin just to draw you out and into a negative light, thereby damaging your credibility as a witness. The best way you can handle this strategy is to come prepared, remain calm at all times, control your emotions, expect surprises and rise above this provoking technique. You can turn a negative light around to shine on your opponent instead of yourself.

If you tell the simple truth, testify accurately and fairly and always maintain control of your emotions, you need not fear being a witness. In fact, you will be a good witness!

Note: The information contained in this article is not presented as legal advice nor should it be construed as the giving of legal advice. Always consult a licensed attorney in the appropriate state when legal advice is needed. You can find assistance through your state bar association.

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