If you are about to be a witness in a deposition, trial or arbitration, here are a few pointers:
1. Before attending court or your deposition, attempt to recall the facts and circumstances about which you will be expected to testify. Review any available papers, records or the scene of the incident involved to refresh your recollection.
Talk To Attorney
2. If you are a party or were previously employed by a party to the lawsuit, do not hesitate to contact your attorney or your employer's (or former employer's) attorney to discuss your proposed testimony. You should also discuss the matter with your employer or former employer.
Read Your Deposition
3. If you have previously given a deposition, study your deposition before appearing as a trial witness. Your deposition may be used to challenge your testimony if there is a conflict between your deposition and trial testimony.
4. Do not attempt to memorize your testimony beforehand.
5. Dress in neat, clean and conservative clothing.
6. Avoid talking about your testimony or the case around or in the courthouse with or within the earshot of strangers.
Understand The Questions
7. Make certain that you hear and understand the question being asked.* Do not hesitate to ask for a repetition or clarification of the question if necessary. Speak up and speak clearly, giving verbal answers rather than nods or winds. Remember that your testimony is being recorded by a court reporter who cannot generally record physical movements-only words.
___________________________ *Avoid this scenario: Question: "Were you ever a witness in court before?" Answer: "Yes, your Honor." Question: "In what suit?" Answer: "In my blue suit."
8. Be both serious and sincere in your answers.
9. Be courteous to everyone-even the attorney for the opposite side.
10. Do not chew gum or tobacco during your testimony.
Look 'Em In The Eye
11. Look at and make eye contact with whomever is to hear your testimony-the jurors, the judge or, in a deposition, the questioning attorney.
12. Use your best English-avoid "yeahs" and "naws" and slang words.
13. Answer truthfully. If you do not honestly know or cannot recall the answer, say so.
Listen To The Question
14. Avoid answering questions which include more than one question (multiple questions). For example, if the attorney asks "Did you stop beating your wife and was she bleeding?" The answer "No" may be understood to be an admission that you were beating her rather than simply your intended denial that she was bleeding.
15. Be your natural self and be a witness. Do not attempt to be an advocate or salesman for your position.
16. Give a simple answer to only the question asked-do not volunteer additional information, even if you think it may help. Leave it to the attorneys to draw out further answers.
17. Take the time to answer carefully. Do not permit an attorney's rapid fire questions to establish a pace which prevents you from answering carefully, correctly and completely.
18. If you cannot answer the question "yes" or "no", explain your answer. Even if the questioning attorney insists that you answer yes or no, courteously explain that you cannot and tell why not.
19. Do not exaggerate.
20. If you are able, give positive and definite answers. Do not say "I think" or "I believe" unless you are uncertain. If you are certain about your testimony, do not hesitate to say so.
21. If you do not remember something, but know of a paper or something else that will refresh your recollection sufficiently to allow you to answer a question, do not hesitate to ask to be allowed to look at that material to refresh your recollection.
Do Not Guess
22. Don't guess about the language or contents of a document. Ask to see the document and testify directly from it. The document may also be offered into evidence.
23. Do not hesitate to ask for a drink (of water) or a recess to answer a call of nature.
Wait For Objections
24. Occasionally, the attorney who is not asking questions will object to particular questions. If he or she rises to make an objection, do not answer or attempt to complete your answer. Wait for the judge's ruling or further instructions from the judge or questioning attorney.
25. Do not be evasive-very few people can get away with evasive answers.
26. Do not argue with any of the attorneys or with the judge, or lose your temper or throw heavy objects.
27. Be confident and show your confidence. Remember that it is natural for you to be nervous. People who tell the truth are not always able to answer every question with eloquence and pat responses.
What You Take Is What They See
28. If you take any papers or other records or items with you to the deposition or to trial, understand that those materials will be available for examination by the attorneys in the case. Discuss these materials with your attorney or the party for whom you will be testifying.
29. If you realize that your previous answer to a question was incorrect or incomplete, do not hesitate to ask for an opportunity to correct or complete your answers. Such request should be addressed to the judge or the questioning attorney.
30. Remember, you will not be graded on your testimony. Therefore, do not hesitate to answer that you do not know or cannot recall, if that is the case. Guessing at an answer usually does no good for no one.
31. Do not become frustrated if you are prevented from testifying to something because of the judge's ruling on an objection to a particular question. Court rulings are based upon centuries of legal history which have resulted in the development of rules governing the admissibility of evidence-based upon the quality of particular evidence or some other important consideration.
32. Remember that your role is to provide assistance in the resolution of a controversy and in the trial of the case. Since the trial is a search for the truth, your testimony is both important and necessary.
33. Do not look at the judge or one of the attorneys for assistance in answering questions.
34. Do not hesitate to answer truthfully concerning such things as your earlier discussions with one of the attorneys in the case about your testimony, the fact that you are being compensated for appearing if you are an expert witness or the fact that you are being reimbursed for lost income and/or expenses while attending your deposition or trial.
An interesting line of questions at trial may go like this:
Question: "Have you previously discussed your proposed testimony with your attorney?"
Question: "What did your attorney tell you to say?"
Answer: "He told me to tell the truth."
Question: "Did he think you wouldn't?"
If you follow all of the above rules, you will have provided valuable assistance-to someone-and easily earn your witness fee. By the way, in Colorado state courts that fee is no more than $2.50 per day (plus 15 cents a mile from your residence to court or the deposition-one way)!