Ten Tips for Testimony: Preparing for the Witness Stand

While many witnesses fear the task of testifying in court with cross-examination by aggressive lawyers, testifying in court can be far more pleasant for witnesses who have prepared for trial.  Indeed, telling the "Truth, Whole Truth and Nothing but the Truth" is not always as easy as it sounds. Telling our story is much easier without a judge, jury and lawyers examining our statements and the precise way that we use them. This is particularly true for those witnesses testifying on their own behalf in criminal cases or in civil lawsuits. In trial, the witnesses are truly "on stage" and must perform well to convey their accounts in a credible manner.

Even when you are represented by AV rated trial lawyers with years of courtroom experience, you must work closely with your attorneys to review the details of your testimony and to anticipate questions which will arise at trial.  If possible, you and your lawyer should review many of these questions under trial conditions.  Let your own lawyer cross-examine you on all aspects of your testimony, grilling you on relevant evidence and documents, and attacking you with prior statements.  While it may be a bit unsettling to see your own lawyer playing the "Devil's Advocate, " it is much better to face your demons in your own lawyer's conference room than to confront tough questions for the first time in the presence of the judge and jury.

When testifying in court, consider these "Ten Tips for Trial Testimony":

1. Be truthful.

This 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 witness' case. In virtually all testimony, there will be some good and bad points which will either help or hurt a person's case. Yet, if the overall account is favorable, witnesses who do not try to "conceal" some harmful facts will help the case far more than those who slant their story.

2. Listen Carefully to the Question -- and wait until the entire question is asked.

A very common problem in testifying, many witnesses are so anxious to cooperate and to provide quick answers that they don't wait until the entire question is asked. As a result, they often answer a different question than the lawyer intended and disrupt the flow and effectiveness of the questioning. Wait until the lawyer asks the entire question before starting your answer.

3. Answer Only the Question That Was Asked.

If you listen carefully to the question, you must 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! This will only assist the opposition in obtaining additional facts to bury your case or that of your ally. If the answer to a loaded question on cross examination is "yes" and you feel compelled to volunteer an explanation which will minimize an unfavorable appearance, remember that your attorney may question you again to permit the opportunity for such an explanation. By trying to "sneak" the explanation into your testimony on cross examination, you will look very defensive on the witness stand and harm your own credibility.

4. Take Your Time -- Think Before Answering Each Question.

There are no points for fast answers. Witnesses who take their time to think about their answers are perceived as being conscientious and concerned about telling the truth. On the other hand, if the prosecutor asks whether you killed your wife, you probably don't want to pause too long!

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!

Witnesses are not "human computers." Many of us have difficulty remembering what we had for dinner last night, to say nothing of events which may have occurred months or years earlier. If you don't know or remember particular facts, do not give your best guess as to the answer. In the hands of a skilled advocate on the other side, guesswork can provide just the tool needed to destroy a witness' credibility and leave him limping off of the witness stand

6. Ask for Clarification if you don't understand a question - never attempt to answer a question that you don't really understand.

Particularly in the anxious and adversarial atmosphere of the courtroom, certain questions may not make sense or may get lost in the commotion of evidentiary objections. Don't try to make sense out of the question yourself. If you don't understand a question, ask that it kindly be repeated or rephrased. Otherwise, you may unwittingly answer the wrong question, providing the wrong testimony in response.

7. Be Cooperative, But Don't Be Forced into an Inaccurate Answer.

Even when dealing with opposing attorneys, witnesses should be cooperative in answering questions and should not show antagonism on the stand. However, witnesses who are too cooperative and give the questioner what she wants to hear may kill their case. 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 Fight with the Questioner or 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 will interpret any uncooperative "attitude" on your part as a sign of weakness. In fact, some trial lawyers will try to exploit this weakness by asking questions in an adversarial tone designed to cause witnesses to lose their cool. If need be, count to "ten" as a way to "cool down" before proceeding with your testimony. If the only person to lose his cool is the lawyer on the other side, you will score major credibility points with the jury.

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. If you are testifying on your own behalf in a case, review these statements and anticipated questions very carefully with your lawyer to eliminate surprises 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."