How to Testify and be a Good Witness, Part 3

Last time, we laid out what the rules were and gave a good example of what a good witness will do, how they’re protected, and how testifying well can assist your case.  In this post, we’ll be getting to the most important rules – which, not surprisingly, are rules one and two.

1.            TELL THE TRUTH AND JUST THE TRUTH.

It’s your moral duty and legal responsibility to tell the truth as a witness.  Most witnesses who get in trouble in a deposition or in court get in trouble because they don’t tell the truth or the whole truth.  You don’t have to remember what you said if you tell the truth.  Even witnesses who normally are truthful will often try to shade an answer or leave something out to help themselves or one of the other parties.  They figure it is a small thing and won’t matter.

Don’t do this!  If you get caught in a little lie, the judge and jury will feel you are lying about 90% of your testimony.  So even if 98% of your testimony was truthful, if you lie about 2% the other 98% gets disregarded.  Finally, you, or the party you are trying to help, will be punished for your lying when the judge or jury makes their decision. No one likes liars, especially in a court room where the job of the judge and jury is try and find the truth and make the right decision based on testimony.

Now all of the rules are encompassed in the second rule which is:

 2) PAY ATTENTION, LISTEN TO THE QUESTION CAREFULLY, AND JUST ANSWER THE QUESTION.

When I say all of the rules are encompassed in the second rule, what I mean is that if you listen to the question and just answer the questions, then you are telling the truth. If you just answer the question you are not volunteering and breaking the other rules. If you remember and just apply this rule you would comply with all of the others. But I am going to go into more detail and hope that this helps you when you are on the witness stand.

This is where 90% of the witnesses fail and become bad witnesses.  Don’t think about the effect of your answer.  Just think, “What is the answer?” and then give that answer.  Most people are thinking about “Why did he ask that?” “What will they think when I say …?” etc..

Don’t do this!  The key to this is to listen, and you can’t be listening if you are worrying about what is being asked.  Listen to the question!  A large percentage of the time, a witness will give a bad answer because they were thinking or day dreaming and do not even hear the question, so they answer the wrong question!  This was what was happening in the example we gave in the first article, where Bob’s lawyer asked a question but the witness was answering a question he wasn’t asked and it sounded horrible!

If you listen, you will hear if they ask a stupid question.  If you are not listening you will not answer stupid questions and not sound stupid yourself.

Here’s an example. “Isn’t it true that you have the worst tardy record because you are out trying to make the most sales in the company?”

If you are not listening you may simply say “Yes” to this question, when the answer is “No.”  If you pay attention and listen you will give the right answer.

If I ask you how much you weigh, the answer pops into your head. If I ask you what is your birth date, the answer pops into your head. This is true every time. Even if I ask you what is the capital of Bolivia the answer pops into your head. Probably that answer is “I don’t know.” That is the right answer as a witness. (I don’t know the capital of Bolivia either, by the way, even though I’m posting this on the Internet where I could look it up!)

Never answer more than what is asked.  If they ask were you late then the answer is yes. But just say yes and do not tell them why you were late.  As strange as it may seem, the best attorneys in the world will fail to ask such basic questions and they won’t know the answer unless you tell them what they did not ask. So don’t do it, even if you think the answer will help the case. If you try to play attorney and verbally duel with the opposing counsel or judge, you will not be a good witness.

I have lost two cases because my clients volunteered information they thought would be helpful, which the other attorney was not smart enough to ask. The information they volunteered caused them to lose.  If they had just answered the questions that were asked, they would have won the trial.

When you are asked a question the answer always pops into your head.  If I ask how old you are the answer will pop in you head.  In fact you can’t not think about it, even if you try.  That answer that pop’s in your head is the answer.  Do not worry about why a question was asked.  If you give the answer that pops into your head and only that answer, you will be a good witness.

The answer does have to be framed properly.  If what pop’s into your head is “Hell no!” just say no.  Your answers always need to be without profanity and not framed in a snarky manner.

If you do not understand or hear the question do not answer the question.  Do not answer a multi- part question.  Make the person repeat the question if you did not hear it or did not understand. Ask them to break it down into separate questions if it is multi-part.  If it is a confusing question or if it has double negatives, or is just stupid, make them clarify the question.  Tell them that you did not understand the question, that you are nervous, and ask them to break it down, simplify it, repeat or rephrase the question.

Do not be afraid to take your time and think if it is necessary. But pause and think only if it is necessary to understand what was asked or to remember the answer.

Don’t try to answer with legal words or in a legal manner. Use your own words.

LISTEN, LISTEN AND LISTEN, AND THEN JUST ANSWER THE QUESTION AND NOTHING MORE.

Next time, we’ll talk about a couple more rules that, while they fit within the broad rule number two, they still need their own explanations to understand why listening and just answering the question is so important.

How to Testify and be a Good Witness, Part 2

Last time, I gave you an example of how most witnesses testify and why that is a bad practice. Today, we’re going to actually get the seven rules for testifying and being a good witness, but I also want to tell you a story about a client who followed these rules and how it worked out for them. The rules will protect you as a witness from being tricked or made to look bad.

In my first child custody case, I had a woman client who was on the low range of normal intelligence. She knew she was slow, so she took these rules up onto the stand on a 3 x 5 card and followed the rules exactly. She had an excellent attorney grill her for hours and he never got to her. She never gave a bad answer or made a mistake. He noticed that she kept glancing at the card, especially before she answered a question. Frustrated, he asked her what the card was in her hand. She said. “It is what Mr. Mansfield told me to do today.”

He got a look of triumph on his face and asked to see the 3 x 5 card. She handed it to him and he read it and handed it back to her. He never brought it up again. I could tell the jury was dying to know what was on the card, so when I had a chance to redirect, my first question was: “Mrs. Client please read what is on the card in your hand.” What she read was the following:

1.            Tell the truth and just the truth.
2.            Pay attention, listen to the question carefully and just answer the question.
3.            Do not volunteer information.
4.            Give brief and concise answers. If an answer is yes or no then say yes or no.
5.            If you don’t know or don’t remember the answer to a question, then that is the answer.
6.            Use approximates when answering dates, numbers, distance, etc.
7.            Be polite, don’t react, and be respectful.

As she read off the above rules the whole jury smiled at her, and many turned and smiled at me. She was a good witness, and we won the case. She was the best witness I had in all my years as an attorney until I represented a professional actress at a deposition. Even then, the actress only managed to testify  better because she had many years of training.

Many of my witnesses need to have these rules on a piece of paper prior to when they testify so they can start to learn and memorize them. I encourage you to read them multiple times and practice reciting the rules to yourself so when you are asked a question, you will automatically know the best way to answer.

In the next installment of this series, we’ll be discussing what some of the individual rules actually look like in practice and give some reasoning on why you should follow them.

How to Testify and Be a Good Witness, Part 1

Most people think they know how to testify and be a good witness in a court proceeding. After all, we have all seen hundreds of examples on TV, in books, and in movies. The problem is, what makes good TV and good drama for a movie is bad on an actual witness stand. No self-respecting and competent judge or opposing attorney will let you act like they do in a TV or Movie drama. You can’t make speeches, ignore questions, blurt out answers not asked or talk over others. That is, you can’t do those things without the judge coming down on you, finding you in contempt of court, or sending you to sit in a jail cell.

So forget what you have seen. Normally, when you are on the witness stand, you are either testifying for yourself or someone you want to help. This means that a judge or jury will be deciding your fate or the fate of the person you want to help. You want the judge or jury to like you and think you were a good witness. They won’t do either of those things if you act like witnesses do on TV or in a movie. Whether it is a judge or jury, the people involved have the common goals to do their duty as expeditiously as possible, make the right decision, and go home or back to work. So if your antics delay the process and cause disruption they won’t like you and that will affect how they gauge your testimony.

In the next few articles, we’ll be exploring the seven different rules of being a good witness. I have told my clients and witnesses these rules for 33 years, and I am confident that if you follow these seven rules, you’ll be the best witness you can be. In this first article, we’ll give an example of what most people do as a witness and tell you why you don’t want to be like most witnesses. In later articles we’ll discuss each of the seven rules and explain any other concerns that readers may bring up.

So how should you testify? What qualities do make a good witness?

First, let me explain that the population in general normally only hears and comprehends about forty-five percent of what they hear. Now, why is that? The reason is that during a conversation, most of us are thinking more about what we want to say than listening to the person talking to us. The first skill you have to master to be a good witness is to listen to the person asking the question. This sounds easy, but it isn’t.

Here’s an example. A witness is on the stand. He has been called to establish that Bob, his brother, is a good father in Bob’s divorce case. He and Bob are close and have spent a lot of time together as a family, and he knows Bob is a good father. The attorney has asked the witness about his background information and is getting from the witness his employment history. The attorney has asked why the witness left each of his former employers. He was fired by one employer who alleged he was unethical. The witness doesn’t want that to come out. He thinks he should not have to answer that question. So the witness’s mind is going a mile a minute, thinking of all the possible answers and whether he should answer when it is asked. The attorney asks his next question and the witness says “It is an allegation only and there is no basis to it.”

The witness realizes everyone is looking at him funny, his sister-in-law is grinning at him, and his brother is angry at him.

Bob’s attorney then says to the witness. “Excuse me Mr. Witness; do I understand your answer to my question ‘Is your brother a good father?’ is that: “It is an allegation only and there is no basis to it?”

What happened? The answer is simple. The witness was thinking and not listening. You have one job as a witness: listen to the question and answer the question. As a witness, you have to put all your worries, concerns, assumptions, and preconceived notions aside and just concentrate on the person asking the question, listen to the question and just answering the question.

Next time, I’ll give you the list of the rules and a good example of how the rules will actually assist you while testifying.