Written by attorney Dan R. Denton

Tips For Trial Testimony

Many witnesses fear the task of testifying in court. The experience can be far more pleasant for witnesses who know what to expect and have prepared for trial. When testifying in court, consider these "Tips for Trial Testimony":

1. Be Truthful. T his common sense advice remains the very best recommendation for any witness taking the stand. When testifying, do not try to "argue" your point, dodge questions to avoid problem areas, or place any type of "spin" on your version of the facts. Witnesses who do this leave themselves quite vulnerable to devastating cross examination by attorneys skilled at emphasizing inconsistencies in testimony. By contrast, witnesses who "tell it like it is" will be well-received by judges and jurors even if the "whole truth" contains some facts which may hurt the case for one of the parties.

2. Listen Carefully to the Question -- and wait until the entire question is asked. If you don't understand a question, you may state that and/or ask that it kindly be repeated or rephrased The attorney will attempt to phrase it in a way that you will clearly understand it. Contrary to television, few if any lawyers purposefully try to confuse a witness with the question. Wait until the lawyer asks the entire question before starting your answer.

3. Answer Only the Question That Was Asked. Don't elaborate and don’t stray from the topic. Your job is to answer questions, not to make speeches or to try to get every word in that you think may be important. If the opposing lawyer has asked a question that begs for an additional question but is not asking it, the lawyer advancing your testimony will ask that question if it is necessary and proper. Consider the scope of the question and not go beyond the issue at hand. Particularly when being cross examined by an opposing attorney, don't volunteer information that was not asked!

4. Take Your Time -- Think Before Answering Each Question. When you speak, speak slowly and distinctly, and speak up so the judge and jury can hear you clearly. Give a verbal answer - nods and shakes of the head cannot be recorded accurately. If the question requires a yes' orno' answer, use those words. The sounds of uh huh' andunh uh' are not words in the English language.

5. Don't Guess at the Answer -- if you don't know, say you don't know! If you don't remember, say you don't remember! You are not required to guess at an answer such as about times or distances. However, you may be called upon to make an estimate. If your response is an estimate you may say so.

6. Don’t Repeat “Hearsay". Hearsay evidence is basically anything said to you outside of the courtroom and is not of your own knowledge. You can't talk about hearsay, i.e. what someone else told you, except in certain circumstances.

7. Be Cooperative, But Don't Be Forced into an Inaccurate Answer. Even when dealing with opposing attorneys, witnesses should be courteous and cooperative in answering questions and should not show antagonism on the stand. Cooperation and courtesy do not require that you give what the questioner may think is the "correct answer." Don't be forced into an inaccurate answer on the witness stand.

8. Don't Show Anger or Impatience with the Questioner. Witnesses who display an "attitude" on the stand are letting their emotions interfere with their own testimony. On the witness stand, keep your emotions in check! Those who fight with opposing counsel rarely win in the long run. Remember, lawyers are trained to win such fights and may try to exploit your attitude by asking questions in an adversarial tone designed to cause you to lose your cool. Being combative, using smart talk, or giving evasive answers will often lose the case for you. Avoid joking and do not utter wise cracks. A lawsuit is a serious matter.

9. Be consistent. When testifying, be consistent with your earlier statements in the case, deposition testimony or testimony in earlier proceedings. Those who give testimony at odds with their earlier statements leave themselves vulnerable to attack and may be perceived as lying even when they simply don't remember relatively minor details. Prepare for the witness stand. Review your earlier writings, statements and testimony very carefully so that you may testify in a manner consistent with earlier statements and eliminate such attacks upon your credibility at trial.

10. Try to Relax on the Witness Stand. This advice is easier said than done. But witnesses who appear relaxed and conversational do much better than those who get frazzled easily. While this is not always easy to accomplish, witnesses who review the facts of a case very carefully and who "practice" their testimony with their own attorneys or the attorneys calling them to the stand usually find the process much less intimidating. These witnesses are then able to look the judge and jury in the eye and convincingly tell the "truth, whole truth and nothing but the truth."

11. Look the Jury in the Eye and Tell Your Story. Jurors are naturally sympathetic to the witness and want to hear what you have to say. Look at them most of the time and speak to them frankly and openly as you would a friend or neighbor. You want the jury to like you and believe that you are credible and truthful.

(Very little of this is original; these tips are a compilation of written thoughts from several sources collected over the years, the identities of which were not recorded at the time and have long been forgotten.)

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