Regardless of the role any witness plays in a case, all witnesses must learn the basic rules of giving testimony. These rules must be understood by, accepted by, and implemented by each witness.
ALWAYS TELL THE TRUTH!
This is more than a cliché. It is a rule of self-preservation. Always assume that the lawyer asking the questions is capable of making a living using his or her professional legal skills, which includes the ability to make a deceptive witness very uncomfortable. REMEMBER: PERJURY IS A FELONY.
ANSWER THE QUESTION.
The lawyer asking the questions is entitled to have his or her question answered. However, it is important to remember to only answer the question that the lawyer asked you.
DO NOT VOLUNTEER INFORMATION.
You are not testifying to educate the lawyer asking the questions.
ANSWER IN COMPLETE SENTENCES.
Only very simple questions should be answered "yes" or "no".
DO NOT GUESS.
If you do not know something or cannot recall a fact, "I do not recall" is the correct answer. This rule becomes more important and more difficult to follow when the lawyer questioning you tries to make it appear that you are an idiot if you do not know the answer to a question. THEREFORE: DO NOT GUESS.
BE ONLY AS SPECIFIC AS YOUR MEMORY ALLOWS. YOUR ANSWER MAY ACTUALLY BE VAGUE. THE IMPORTANT THING IS TO PROVIDE YOUR "TRUE" RECOLLECTION.
If you are asked when an event occurred and you remember that it occurred on January 15th, say "on January 15th". If you cannot recall the exact date, your answer is the approximate date, "Spring, 2000".
WHEN TESTIFYING ABOUT A CONVERSATION: BE CERTAIN IT IS CLEAR TO EVERYONE THAT YOU ARE PARAPHRASING, WHEN YOU ARE PARAPHRASING.
BE CERTAIN IT IS CLEAR TO EVERYONE THAT YOU ARE QUOTING, WHEN YOU ARE QUOTING.
WHEN THE ANSWER TO A QUESTION DEPENDS ON A COMPLICATED SERIES OF EVENTS OR EXTENSIVE CONVERSATIONS: SUMMARIZE WHENEVER POSSIBLE.
It is the responsibility of the lawyer asking the questions to ask you for the details. It is acceptable if the lawyer accepts your summary.
DO NOT EXPLAIN YOUR TESTIMONY.
Do not use phrases like "in all candor", "honestly", "I'm doing the best I can".
AVOID ADJECTIVES AND SUPERLATIVES.
Since "always" and "never" are rarely true, the use of such words has a way of coming back to haunt you.
IF YOU ARE INTERRUPTED, LET THE PERSON WHO INTERRUPTED YOU FINISH THE INTERRUPTION. FIRMLY BUT COURTEOUSLY STATE THAT YOU HAVE NOT FINISHED YOUR ANSWER TO THE PREVIOUS QUESTION. THEN, FINISH YOUR ANSWER TO THE PREVIOUS QUESTION.
NEVER EXPRESS ANGER AND NEVER ARGUE WITH THE LAWYER ASKING THE QUESTIONS.
AVOID HUMOR.
Take your solemn oath to testify to the truth, the whole truth, and nothing but the truth seriously. Joking may be considered an act of Contempt of Court.
NEVER USE AN OBSENITY, AN ETHNIC SLUR OR ANY REFERENCE THAT COULD BE CONSIDERED DEROGATORY.
IF THE LAWYER QUESTIONING YOU APPEARS TOTALLY CONFUSED ABOUT TECHNICAL ASPECTS OF YOUR BUSINESS, DO NOT ATTEMPT TO EDUCATE HIM OR HER.
DO NOT EXPLAIN YOUR THOUGHT PROCESSES.
If your answer to a question depends on your memory of facts, and these facts have not been discussed during your testimony, do not use those facts in your answer. For example: If you are asked when a conversation with Mr. Jones took place, and you remember that the conversation was in December because you met Ms. Smith after meeting Mr. Jones and you remember that you met Ms. Jones in January. Your answer is: "in December". Your thought process is not part of your answer.
THINK BEFORE YOU SPEAK.
Wait five full seconds before you begin to answer each question. This short delay in your response allows your attorney to object. It also gives you time to think about your answer.
IF THERE IS AN OBJECTION TO A QUESTION YOU WERE ASKED, LISTEN TO YOUR ATTORNEY'S OBJECTION VERY CAREFULLY.
Your attorney's objection may help you understand the question and how it should be answered.
PAY SPECIAL ATTENTION TO THE INTRODUCTORY PORTION OF EACH QUESTION.
A leading question is often preceded by a statement that contains information that is either a "half-truth" or is information that you may not know whether it is true or not true. Do not allow the lawyer questioning you to put you in the position of accepting "half-truths" or unknown facts. When this happens, the lawyer is then likely to ask you a series of questions based upon those "half-truths" or unknown facts.
DO NOT TESTIFY ABOUT FACTS THAT OTHER PEOPLE KNOW UNLESS YOU ARE SPECIFICALLY ASKED ABOUT THOSE FACTS. YOU ONLY KNOW WHAT YOU HAVE SEEN OR HEARD.
Questions are often phrased "do you know". A question may actually call for something you do not know, but the question must be phrased that way. There is a difference between a question that asks, "what do you know", and a question that asks, "whether you have any information on a particular subject".
DO NOT TESTIFY ABOUT WHAT YOU THINK OR FEEL, UNLESS YOU ARE SPECIFICALLY ASKED "WHAT YOU THOUGHT" OR "HOW YOU FELT".
If the question is: "Did you read that document?", the answer is "Yes". Your answer is not "Yes, and I believe every word of it".
IF YOU ARE ASKED ABOUT A DOCUMENT WHICH IS AN EXHIBIT WHEN YOU ARE TESTIFYING: READ IT BEFORE TESTIFYING!
Do not comment about the document except to answer the question you were asked.
IF YOU ARE BEING ASKED FOR INFORMATION THAT IS IN A DOCUMENT WHICH IS AN EXHIBIT, UNLESS YOU ARE VERY CERTAIN YOUR ANSWER IS CORRECT, ASK TO SEE THE DOCUMENT!
IF YOU ARE BEING ASKED FOR INFORMATION THAT IS IN A DOCUMENT WHICH IS NOT AN EXHIBIT, ANSWER THE QUESTION, ONLY IF YOU KNOW YOUR ANSWER IS CORRECT.
Do not tell the lawyer questioning you that a document exists which has the answer he or she is seeking. If you can only answer a question by looking at a document that is not marked as an exhibit, you may simply answer the question by stating that you do not recall. If you know the answer; answer the question. Often when a witness states that he or she does not recall a fact and the lawyer asking the questions believes the witness should know the answer, the lawyer will ask the witness if there is a document that will refresh his or her memory.
IF YOU DO NOT REMEMBER A FACT, SAY: "I DO NOT REMEMBER".
You may be asked if a statement or document will help you remember a particular fact. If something will help you remember, say so. If there is nothing that will help your memory, your answer remains that you do not remember.
DO NOT AGREE TO SUPPLY DOCUMENTS OR INFORMATION REQUESTED BY THE LAWYER QUESTIONING YOU.
If the lawyer questioning you asks for certain documents or information, that request is actually being made to your attorney, who will answer the request.
DO NOT ANSWER A MULTIPLE PART QUESTION UNLESS YOU ARE CERTAIN THAT YOU REMEMBER ALL THE PARTS OF THE QUESTION.
If it is too complex to remember, it is far too complex to answer.
DO NOT ANSWER A QUESTION YOU DO NOT UNDERSTAND.
It is up to the lawyer questioning you to ask understandable questions. If you do not understand the lawyer's question, ask the lawyer to rephrase the question or to ask the question another way. Be especially careful of questions that contain double negatives.
DO NOT AUTOMATICALLY ACCEPT A SUMMARY OF YOUR PRIOR TESTIMONY BY THE LAWYER QUESTIONING YOU. IF THE LAWYER'S SUMMARY OF YOUR TESTIMONY IS INCORRECT, BY ALL MEANS, CORRECT HIS OR HER SUMMARY OF YOUR TESTIMONY.
DO NOT LET THE LAWYER QUESTIONING YOU TO TESTIFY FOR YOU: "TO PUT WORDS IN YOUR MOUTH".
Do not accept the questioning lawyer's statements regarding 1. time, 2. distance, 3. personalities, or 4. events. Using your own words, rephrase the question into a sentence of your own which accurately sets forth factors such as time, distance, personalities, and events.
WHEN YOU HAVE COMPLETED YOUR ANSWER AND YOUR ANSWER IS COMPLETE AND TRUTHFUL, REMAIN SILENT - DO NOT EXPAND YOUR ANSWER.
Do not add to your answer simply because you think the lawyer anticipates additional information from you. It is human nature to feel uncomfortable during a period of silence. If the lawyer asks you "is that all you recall", unless you remember additional information, it is okay to say "that is all you recall". Do not expand your answer simply to expand your answer.
EVERY WITNESS MAKES MISTAKES AT A DEPOSITION.
Do not become upset if you make a mistake. When you realize that you made a mistake during your testimony, correct your mistake as soon as you realize it.
DO NOT EXPECT TO TESTIFY WITHOUT THE LAWYER ASKING THE QUESTIONS GETTING HELPFUL NFORMATION.
If it appears to you that your answers are hurting your case, accept the fact that every lawsuit has two sides. Avoid the temptation to "second" guess your case. Answer "the" question you were asked. However, do not be evasive.
IF YOU GIVE AN INCONSISTENT ANSWER, DO NOT COLLAPSE.
What happens after you give an inconsistent answer depends upon the questions the lawyer asks you about your inconsistent answers. If you are asked, "what is your present memory", tell what you now remember. Do not offer a reason for your inconsistent answers unless the lawyer asks you.
IF YOU RECALL A FACT WHILE TESTIFYING OR HAVE AN INSIGHT REGARDING THE CASE WHICH HAS NOT PREVIOUSLY BEEN DISCUSSED WITH YOUR ATTORNEY, IF IT IS POSSIBLE, KEEP IT TO YOURSELF, UNTIL YOU HAVE AN OPPORTUNITY TO DISCUSS IT WITH YOUR ATTORNEY.
USE A RECESS IN YOUR TESTIMONY TO GO WITH YOUR ATTORNEY TO A PLACE WHERE YOU CAN TALK IN PRIVATE. THERE IS NO SUCH THING AS: "OFF THE RECORD"!
If you have a conversation with anyone before you testify or during a recess, be prepared for to answer questions regarding that conversation. Even after your testimony has ended, you may be recalled to testify. Be prepared to answer questions about any conversation you may have after your testimony.
*article courtesy of David Danda of David E. Danda & Associates, LLC, daviddanda@mindspring.com