Trials

3. Trials: Preparing to Testify

Your lawyer will have specific suggestions and instructions to help you in preparing to testify. These instructions will be based on your specific personality, your specific case, the kind of hearing, and the temperament of other parties involved, particularly the judge. Nevertheless, here are a few rules that will serve you well. Your lawyer will probably give you written instructions that are similar to these.

1. Except in unusual circumstances, conform to the question-and-answer system of giving evidence. You may have seen a movie in which the hero takes the witness stand and explains everything to everyone’s awe and amazement. This technique is successful only in the movies. The judge in your case will insist that you not make a speech.

2. Only answer the question that you have been asked. Do not attempt to make a speech about something that has not been asked. This will draw objections. It will offend the judge. It may offend the jury.

3. Do not attempt to answer a question until you are absolutely sure that you understand what is being asked. If the question is unclear or ambiguous, ask that it be repeated. If you still don’t understand, continue to say so. Do not use this to try to avoid answering a clear question.

4. When being cross-examined by the other side, do not volunteer information. You are not answering a friend’s questions. Use the shortest answers consistent with accuracy. If a question can accurately be answered with a “yes” or “no,” this is usually the answer that should be given. Your attorney will have the opportunity to fill in gaps by asking you questions at a later time.

5. On the other hand, do not be badgered into giving an answer that is not accurate. Remember: The opposition can ask leading questions—that is, questions that call for a particular answer. Do not agree with opposing counsel just for the sake of politeness. For example, if opposing counsel insists that a question can be answered with a “yes” or “no,” but you do not agree, do not give in. Firmly but politely stick to your position.

6. If you do not know the answer to a question just say, “I don’t know.” You are not expected to know everything.

7. Do not allow yourself to be rushed. If need be, think about the question before answering.

8. Do not force the opposing counsel to “dig” an obvious, but painful or embarrassing fact out of you. Some things are black and white. Is this your fourth marriage? Were you convicted of drunk driving? Do you have an illegitimate child? Did you flunk out of college? If you hedge on your answer to this kind of question, you only make matters worse. Be smart. Tell it like it is. Of course, there may be mitigating circumstances. Don’t try to explain now. Let your lawyer bring up the items in due course.

9. Do not admit your worst thoughts. Only you know what is in your head— your thoughts, feelings, intentions, etc. All normal people of reasonable intelligence have had bad thoughts, such as murder, suicide, theft, lust, etc. Keep in mind when testifying that thoughts and emotions are usually mixed. While you are testifying is not the time to have a therapy session and disclose all of your bad feelings. Temper your answers with the qualifications and reservations that are absolutely necessary to give a true picture of the human mind.

10. Leave yourself running room on amounts of money, dates, times, addresses, physical dimensions, etc. Use words like “approximately,” “I think, but I’m not absolutely sure,” “more or less, etc.” If you have records giving exact figures, offer to consult those records.

11. Do not try to memorize your answers. If you have kept notes or diaries of events or have given a deposition, by all means consult these to refresh your memory. Do not, however, try to testify in exactly the same words.

12. When any lawyer makes an objection, stop speaking immediately.

13. Unless your lawyer indicates otherwise by making an objection, you must answer all questions. Do not say, “Do I have to answer that?”

14. Be polite. Show your good manners. This does not mean that you are to give in or be pushed around. Be firm. But make up your mind that, if necessary (and it usually is), you will disagree without being disagreeable. Remember: To lose your temper is to increase the odds of losing your case.

15. Do not expect every question to be a trick question. There are just not that many trick questions. By looking for the hook in everything, you will appear to be calculating or dishonest.
16. Dress neatly, but conservatively. If you err, do so slightly on the formal side rather than the informal.

17. If it is a jury trial, jurors will be watching you as much as they are listening to you. Hence, you are giving testimony every moment you are in the courthouse—not just while seated on the witness stand. Jurors will be as curious about you as you are about them. You are giving evidence at the counsel table, in the hallway, at the concession stand, and in the bathroom. Be polite. Be human. Never be condescending.

18. Never appear bored or indifferent. Show everyone that you are taking the case seriously.

19. If you make a mistake because you are nervous, apologize and say you are nervous. This will help you relax.

20. Use conversational tones. Talk in the same manner that you would to family, friends, or persons on the street. Speak up. Most courtrooms are large. Many have poor acoustics. Do not put your hand over your mouth. Recognize that it is your responsibility to communicate your side of the case in a manner that can be reasonably understood.

21. Do not argue with the other side’s lawyer. Do not ask the other lawyer questions, except to clarify questions. If the lawyer is rude or unkind, do not respond in kind. Continue to be polite while firmly resisting and disagreeing. The judge or jury will reward you for your politeness.

22. Opposing lawyers sometimes ask you if your lawyer told you what to say in your testimony. Your answer should be that you discussed the testimony you would give and your lawyer told you to tell the truth. Sometimes opposing lawyers ask, “Who did you talk to about your case or the testimony you gave here today?” The implication and tone of the question suggest that there is something wrong with talking to your lawyer or anybody else about the case. There is nothing wrong with your having talked to other people about your case. Just answer the question.

Depositions

Some special rules apply to deposition testimony.

1. Since the other lawyer is sizing you up to see how you will perform in court, all of the foregoing rules apply. If your deposition testimony is good, this may improve your bargaining position.

2. Most smart lawyers are very polite to witnesses at depositions. Do not worry about being browbeaten by your [opponent’s] lawyer.

3. Let your lawyer do the fighting. Since there is no judge present to rule on evidence or make other rulings, depositions can develop a “free-for-all” atmosphere. A small minority of lawyers use this absence of the judge to try to intimidate the other side. Your lawyer may ignore this, or if it gets out of hand, decide to “push back.” Let your lawyer make this decision.

4. You and your lawyer have great control of the deposition’s pace and schedule. Since there is no judge or jury, you may decide when you need a drink of water, to use the bathroom, to take a break, to talk with your lawyer. Of course, this gives you great freedom in working with your lawyer. The other side may try to limit this by having the court reporter note the lengths of breaks or conferences. This usually is not a problem.

Robin M. Green, Divorce: When It’s the Only Answer (The Ordinary Mortals Guide, Inc., 2005), Chapter 12, pp. 177-180.