Preparing to Testify

         20 Rules for Preparing to Testify 

Compliments of the Oklahoma Family Law Section

1.  Tell the Truth.

Honesty is always the best policy and nowhere more so than in a court of law.  An outright lie can lose the best prepared case.  You must testify as accurately as possible about what you know, what you saw, what you heard, and what you did.  But what about questions – and there are many – that few if any could answer with 100 percent certainty?  Avoid a yes or no answer and reply that you are “testifying from memory,” that your answers are “accurate to the best of your present ability to remember events.”

For instance, almost everyone has handled the truth carelessly at one time or another.  Does it follow then that when you are asked whether you have ever told a lie, you should answer “yes”?  I don’t think so. A better response is, “I have always tried to tell the truth.”  If pushed again on this issue, the second response could be, “As I stated, I have always tried to tell the truth.  I am sure at some time I may have either exaggerated something or failed to tell the exact truth that someone expected to hear, although I cannot remember any specific incident.”

Remember, opposing counsel will try to seize a particular word or phrase and take it out of context to use against you.

2.  Answer Only the Questions Asked.

The best way you can do this is by giving a one-sentence answer and then keep quiet. In this way, you can force opposing counsel to ask specific questions.

3.  Never Volunteer Information.

This is the result of Rule 2. Offering information only opens the door for further questions you may not be prepared for. Again, answer only the question asked.  Failure to steer testimony in the direction opposing counsel had hoped will usually make him or her go back to asking specific questions. You will not have volunteered potentially harmful information.

4.  Fully Answer Every Question.

“Who, what, why, when, where, and how” questions may sometimes be answered with a single word or phrase. However, if you are asked any of these, you should be ready to give a full and accurate response.  Here, relevant details are not only permissible but necessary.

For example, Petitioners who have suffered injury through another’s negligent act are always asked, “What can you not do now that you could do before the accident?”  Prepare a list of activities you can no longer do.  Then expand the list to include the activities you cannot do to the full degree that you could before the injury.  This will help you prepare for opposing counsel’s questions during the trial and will give you an opportunity to show jurors how a serious injury can change a life.

5.  Use the Nine-Magic-Word Answer.

When you finish responding to questions that require a detailed explanation, opposing counsel will sometimes ask, “Is that all?”  You should not say “Yes” or “That is all.”  This is the time to invoke the nine magic words:  “That is all I can recall at this time.”  This leaves a door open to additional information.  For example, should you initially list only five activities that you can no longer do, you would later be able to expand the list without opposing counsel using you own testimony against you.

Even if opposing counsel does not ask, “Is that all?” you should conclude your responses to open-ended questions with the nine magic words.

6.  Ask to Explain Your Answers.

Ask if you can briefly explain an answer to a question that calls for a yes or no response. A question like “Have you ever stolen money?” may be asked.  A simple “No, ma’am” could hurt. Here, a full-sentence response is always more credible and convincing than a one-word answer. You should be allowed to add, “I have never stolen any money,” carefully emphasizing each word.

7.  Think About the Questions.

Always think about the question before answering it. This is to avoid misinterpreting questions or giving damaging answers and to allow time for couching answers in words that will have a positive effect on the case.

8.  Explain the Plateau Situation.

An inevitable question during a personal injury trial is, “Aren’t you better now than you were right after the event?”  The obvious answer is “Yes.”

But without clarification, this answer could be used to limit damages.  Always tell the truth, of course, but in fairness to yourself also say, “Yes, I am doing better now than I was in the hospital right after the accident, but I have reached the point where I am not getting any better, and at times I even feel as though I am getting worse.”  Injured people reach a certain plateau in their recoveries, and it is rare for them to get beyond it.  As they learn to deal with their injuries, they have to accept that they can do less than they could before the injury.  This realization makes them feel as if they are getting worse.

This response often leads to opposing counsel to ask, “How are you getting worse?”  This gives you the chance to explain.  For example, you can discuss your mental anguish over the loss of hope that you will improve and your distress that the limitations imposed by the injuries are permanent.

9.  How to Support Your Conclusions.

When you respond to a question by presenting a factual conclusion, the next question may be “What do you base that on?”  For example, if you answer “Yes” to “Have you suffered pain?” opposing counsel may ask about the typed, frequency, and duration of the pain.

An example of how to describe the type of pain could be, “It feels like having a screwdriver poked in my back.”  An example of how to describe frequency could be, “It seems to happen every morning when I get up, after I stand on my feet too long, and when I am trying to fall asleep.  Those are the main times, although it also happens at other times.”  To describe duration, you could say, “Severe pain lasts for the first hour or so after awakening.  After I have been on my feet for a while, I have pain during the rest of the day.  I have trouble going to sleep because of the pain.”

Whether you draw a subjective or factual typed of conclusion, you should have a basis for your response.

10.  Obey the Approximation Rule.

Use the word “approximately” when giving a time or date – unless it is a birth date, a wedding date, or something as definite as those. If you give a specific date or time, a document like a medical record can be used to impeach credibility.  Opposing counsel will ask, “Are you just as sure about that as you are about all of your other testimony?”  If you answer “Yes,” the opposing counsel has set you up for impeachment.

11.  Do Not Guess.

Never guess at an answer without explaining that you are estimating.  I have had clients say that they were three or four car lengths away before the Respondent failed to yield the right-of-way.  Later, when asked, “Approximately how many feet away were you at that time?” they answered, “Twenty-five feet.”  This answer conflicted with the first one because most cars are about 20 feet long, a fact the clients did not realize.

12.  Never say “Never”.

You should not use the words “never” and “always”. These words can be used against you and are not necessary to fully answer a question. For instance, you should not say “I’ve never had any preexisting condition” unless you are absolutely certain. Otherwise you run the risk of the opposing counsel impeaching them with prior medical records that you may have forgotten.

13.  Opposing Counsel’s Style.

I will familiarize you with opposing counsel’s personality and tactics during the deposition.  You will then know what to expect when all his participants are in the courtroom.

14.  Do Not Be Intimidating or Intimidated.

You should not try to intimidate the opposition.  For instance, arguing, making unpleasant facial expressions, or even insulting the opposition could be seen as attempts to intimidate.  The jury will not sympathize with a bully. You should always be polite and positive while testifying.

If the opposition tries to intimidate you and you are feeling anxious, you should ask for a break, take three deep breaths, square and drop your shoulders, and continue testifying.

15.  Let the Opponent Finish Asking a Question.

Do not interrupt opposing counsel. Even if you think you have properly anticipated the full question, you may be mistaken.  Interrupting can open the door for another dozen questions you might not be prepared for. Wait until the defense attorney finishes asking the question before responding.

16.  How to Point out Interruptions.

If you are interrupted with a statement by counsel, make sure you let the attorney go ahead and finish speaking. Then you should respond with, “I’m sorry, but I had not completed my answer to the previous question.”  Then the record will contain this interchange.

17.  What to Do If You Are Not Sure How to Answer a Question.

When you are asked serious questions that you do not know how to answer, there are two things you can do. You can tell opposing counsel that you do not understand the question and ask for clarification. Often this will clear up any misunderstanding on your part.  This also gives you a little more time to think about the question and how to answer it.

You can also ask opposing counsel to restate or rephrase the question.  This too allows you more time to collect your thoughts before you answer.

You should ask for clarification or restatement only if it is absolutely necessary.  If you ask too often, jurors may think you are making up answers.

18.  Always Be Polite.

Courteous witnesses make a positive impression on jurors and judges.  For example, instead of saying merely “yes” or “no”, you should say “yes, sir” or “no, ma’am”.  This shows that you are respectful, no matter what tactics opposing counsel resorts to.

19.  Look Jurors or the Judge in the Eye.

You will tend to look at the lawyer who is examining you.  Look directly at the jurors or the judge most of the time.  You should try to overcome being nervous or shy and speak to the members of the jury as if they were neighbors or friends.  Jurors are interested in getting all the information they need to make an informed decision in the case.  They will be looking to you to supply necessary information.

20.  Your Appearance.

Make sure you dress and behave appropriately.  You should wear clothing that you normally wear; you need not go out and rent a suit.  But you should dress neatly – as you would for a celebration dinner or a Sunday at church.  You should behave as if they are in those situations as well. Witnesses who are calm, articulate, and polite rarely go wrong.

Preparing for testimony is hard work, requiring specific instruction from the attorney and cooperation from the client.  It is critically important for you to understand that what you say can be used for or against you. Testifying truthfully, answering questions briefly, and tempering or expanding replies will make you a good witness.

Please let me know if you have any questions or suggestions regarding the above matter.

Very truly,

Timothy J. Pickens

 

Be Sociable, Share!