Oct 10

Rules for Testifying

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If you are ever involved in a lawsuit, a divorce, or subpoenaed as a witness in any kind of case, you will likely have to testify, either in open court or at deposition, or sometimes both.  This is a daunting experience for most people, and rightly so.  We have all seen courtroom dramas where the brilliant attorney bamboozles the hapless witness into confessing something they never intended to say.  Well, although real life is seldom as dramatic, the reality is often more serious and frightening for the witness than any movie.

I carefully prepare my clients for testimony.  In addition to walking them through my own questions, I sometimes role-play with them, where I pretend to be the opposing lawyer, and aggressively question them as if we were in court.  I listen carefully to their answers and observe their demeanor.  While I never suggest answers, I do discuss with them strategies for how to answer certain questions, and talk to them about how to improve their body language.  I look for “tells,” and discuss with them how to minimize them.

Testifying at a deposition or a court hearing is nothing like a regular conversation.  An offhanded comment can be the fulcrum upon which the entire case can tip.  It is imperative that anyone who testifies understands that, and is cognizant of everything that comes out of their mouths.  The following are the rules I ask my clients and witnesses to follow when they testify:

  • Tell the truth. I know that sounds obvious, but you would be amazed how many times otherwise honest people panic when they’re under oath and start telling small lies to stay in their comfort level.  Then, these small lies grow into larger ones, and inevitably, an experienced attorney will catch them.  Tell the truth even if you think it will hurt your case.  I will get a chance to rehabilitate you during re-direct, and give you a chance to explain your answer.
  • Think before you answer the question. Remember, this is not a regular conversation with an acquaintance or friend.  The lawyer asking you questions is an advocate for the other side.  Whether you like it or not, his job is to put you at a disadvantage relative to his client.  Your job is to avoid that if possible.  A clever lawyer will occasionally word a question in such a way that could lead you into a trap from which there is no escape if you aren’t listening carefully.  So think about what he is asking you before you answer him.  Do not assume halfway through the question that you know where the lawyer is going.  Give yourself a few seconds to absorb the actual meaning of the question before answering.
  • Answer in short, declarative sentences. There should be an internal clock running whenever you speak.  If you find yourself talking more than 20 or 30 seconds while answering a question, it’s time to shut it down.  Don’t ramble, and don’t explain your answers: just answer the question before you as succinctly as possible.  If the lawyer needs more information, she’ll ask for it.  Also, remember a court reporter is recording everything said.  The record must be as clear as possible.  Answering “uh-huh” or “uh-uh” may mean yes or no in regular conversation, but reading those responses in a transcript could lead to confusion as to what you actually meant.
  • Do not argue with counsel or take anything he says to you personally. Remember the other lawyer is doing his job.  He has no personal ax to grind with you, no matter how assertive he may be toward you.  Sadly, some lawyers are just nasty and seem to enjoy making people squirm.  However, even those who are just trying to do their job become aggressive if they think the situation calls for it.  I’ve turned up the heat a number of times on witnesses when I think for whatever reason it’s appropriate.  Many times witnesses will become more concerned about how steamed they are than in focusing on the subject at hand, drop their guard and say things they probably wish they hadn’t.  It’s one of the oldest tricks in the book, and it works like a charm.  Don’t let it happen to you.  If you feel yourself becoming irritated or angry with the other counsel, stop yourself, take a few breaths and try to relax.  If you’re really uptight, you can ask for a break.  You have an absolute right to take breaks during a deposition, and if you’re losing it at a hearing, you can ask the judge for a quick recess.  A judge may not grant your request, but you can buy yourself a few moments to compose yourself just by asking for the break.
  • Don’t be afraid to ask the attorney to clarify their questions. No one likes to feel stupid.  Most of us, including me, have faked our way through awkward situations at least once or twice by pretending we understood what was going on, when in reality we were clueless.  Don’t let your ego get the better of you when you’re testifying.  If you don’t understand something, ask about it, even if you think it will make you look dumb.  Looking dumb because you asked the other lawyer to clarify his question is a lot better than trying to fake your way through and make an answer that later exposes your true ignorance or makes you look like you’re lying.
  • During depositions, you can ask to consult with your attorney before answering a particular question. You cannot do that in a trial, however.  For instance, if you feel you need to ask your attorney a question about something before answering a deposition question, you can ask for a break; the other lawyer will allow the consultation.  You’re on your own at a court hearing, so be as prepared as you can before taking the stand.

If you follow these rules and have prepared for your testimony with your lawyer, there is no reason why you should not perform well, and avoid screaming, “You can’t handle the truth!” at some smart aleck lawyer trying to get your goat.








Alf Langan

Solo practitioner attorney since 1991 based in Green Bay, Wisconsin, specializing in estate planning, family law, and criminal defense. B.A. from Northwestern University: J.D. from St. Louis University School of Law. Licensed to practice in Wisconsin, Illinois, U.S. Tax Court, U.S. Federal District Court (E.D., Wisconsin).