Guidelines For Anticipated Testimony

by Frank T. Luciano

Your duty to serve as a witness is essential to an equal and fair administration of justice. You are a witness because you know something about the case. You may be a litigant, the victim of a crime or an accident, an eyewitness, or possessed of some special knowledge about the events that are subject of a legal controversy.

Although you may not think that what you know about the case is important, it may turn out to be highly significant. Often times, many small pieces of information are required to determine what really happened. To ensure that a judge or jury will be able to make a fair and just decision, you must testify in a totally accurate manner. Recited below are a number of helpful tips to assist you in your responsibility as a witness. Remember, however, they are just guidelines, and except for the first few, they are not based upon iron-bound principles. Use them carefully, especially if you are a litigant who is testifying.

1. Tell the truth! Tell the truth! Tell the truth!

2. Do not exaggerate.

3. Always wait until the question is completed before you answer the question.

4. Listen carefully to each question. Do not anticipate questions and do not read into the question a meaning that is not there. If you do not understand the question, ask to have it repeated. Never answer a question that you do not understand or one that contains a word or term that you do not know.

5. Do not volunteer information. Answer only the question that was asked, and then stop. If the question requires a "yes" or "no" answer, give a "yes" or "no" response and nothing more. If additional information is required, a good lawyer will ask another question. Do not give information away. From time to time, questions are asked that can not be answered with a "yes" or "no" response. Should that occur, simply say you are unable to give a "yes" or "no" answer.

6. You must read prior statements, certifications, affidavits and depositions that you have given. You must always be consistent with your prior statements or testimony.

7. When asked about speed, distances, dates or times and your answer is your best estimate, be sure that you say that it is an estimate. Before testifying, think carefully about speed, distances, dates or intervals of time and, if necessary to refresh your memory, discuss the matter with others. Be aware that you may be asked if you had such a discussion. Be honest in your reply. Unless a time, distance, etc., is extremely relevant and you have good recollections on these issues, do not "dig in" here. You may get hurt later.

8. When asked about a conversation, state that your answer is to the best of your recollection. More often than not, you will not remember the exact words and, if that is true, say so. You may respond, however, by saying "he/she said something like. . ." or "he/she used words to the effect that. . . "

9. Some questions are designed to test your truthfulness. Questions such as: "have you talked to anyone about this case?" are simple and straightforward. Do not be afraid to testify that you have discussed this case and your anticipated testimony with others, including the lawyer who prepared you for your testimony.

10. Always be polite to the opposing lawyer and to the judge. Answer questions "yes sir" or "no sir" but try not to over use "sir" in your answers. Do not quarrel with the other lawyer. Do not be flippant or hostile. Be serious. Avoid talking about the case in the halls, restrooms, or any other place in the courthouse.

11. If the judge interrupts you, stop immediately. If any lawyer, whether your lawyer or the opposing lawyer, objects to what you are saying in response to the question that was asked, stop at once.

12. When asked a question, do not look to the judge or your lawyer for help if no objection is raised. If the question is improper, your lawyer will object. Do not answer it until you are instructed to do so.

13. Do not be lulled into a relaxed mode while testifying. You might let down your guard.

14. When testifying in a jury trial, sit up straight, direct your answers to the jurors. Look at them most of the time. Speak clearly and loudly enough so that every juror can hear you. Do not respond by shaking your head. Do not use street slang.

15. While in the courtroom during a trial and waiting to be called as a witness, do not chew gum and do not read anything.

16. Wear clothes that are suitable, clean and neat.

17. Appear confident when approaching or leaving the witness stand.

18. If you witness an accident, try to revisit the scene before the trial to familiarize yourself with the location and practice describing it to others.

19. If you have never had an opportunity to observe a trial, do so.

20. If you realize your answer is wrong, correct it immediately.

21. If you realize your answer was not clear, clarify it immediately.

22. The judge and jury want only facts as you know them. Usually, you will not be allowed to testify about what someone else told you.

23. Try to avoid prefacing your answer with "I think," "I believe," "In my opinion." State your answer in positive, definite terms whenever possible. If you do not know the answer or are unable to remember, say so.

24. Do not use "wishy/washy" or weak words such as: "maybe", "probably", "possibly", or "perhaps". Words like that suggest you are guessing or do not know the answer.

25. If you are asked if you are "certain" of your answer, only answer "yes" without hesitation if you are.

26. If your recollection of something is uncertain, ask the questioning attorney if he/she has a document that might help refresh your memory before answering.

27. Never use words or terms such as: "honestly" or "to tell you the truth". You will lose your credibility because you have taken an oath that requires that you speak honestly and truthfully.

28. Do not use words such as: "always" or "never." Should you do so, the opposing attorney need only find one exception to argue that you are not telling the truth.

29. Do not overuse the term " I don’t recall." Repeated answers of that type may affect your credibility. A better response might be to say "I don’t know" or "I don’t understand."

30. Do not respond with a "um-hum" or "mm-hmm," since they can be misinterpreted by the court reporter. Use only words in your replies to questions.

31. Do not use intensifying words such as: "very" and "extremely." They may signal a bias or weakness in your testimony.

32. Try to avoid displaying nervous habits. Remember that the jury is observing you, while you might be expected to be somewhat nervous, there is a line that you should try not to cross to avoid giving the impression that you are not telling the truth

33. If you are asked a question that you do not care to answer, do not ask the judge for advice. If there is no objection, you must answer the question.

34. You must review all potential trial exhibits that may relate to your testimony.

35. While testifying, do not read from or refer to documents unless you must. If your lawyer needs to refer you to a document, he/she will produce it. Disclosure nothing.