Rule 4: Think Before Answering
Rule 4 goes hand-in-hand with the 3 previous rules. Always listen
to the FULL question before you begin to answer. Take a few seconds
before you respond, if you need the time. You can even ask counsel to
repeat the question if you need a little more time to think about your
answer. However, don’t use this technique often, as you may upset the
presiding judge.
Some things to keep in mind:
Do not say "yes" if you really mean "maybe."
Do not say "no" if you really mean "I do not recall."
The word "no" means NO – absolutely not!
The word "yes" means YES – absolutely yes!
So, if certain answers are maybe, say "maybe." If opposing counsel
instructs you to answer yes or no, and you cannot, then say you cannot
answer yes or no. Sometimes opposing counsel may phrase a question where
you may want to answer yes or no, but a fact or two may require you to
answer "maybe" or something else.
Let’s go over an example:
Counsel: Have you ever met a person named Angela Merkel?
Witness: I may have.
This could be a good response if you are not absolutely sure as to
whether you have met such a person. If Angela Merkel is your best
friend, then definitely respond "yes," but offer nothing more. In other
words, do not tell opposing counsel Angela is your best friend unless
you are specifically asked if she is your best friend.
Rule 5: Prepare Before You Testify.
You should review any documents, statements, or other records you
may have made that opposing counsel may question you about. This does
not mean you should prepare like a test. What is means is that you
should go over the relevant facts that opposing counsel will likely
question you about. Then, you’ll have an idea of what opposing counsel
might ask and this should help to limit any surprises. Still, even with
preparation, you can never know with 100% certainty what opposing
counsel will ask – but you can often come fairly close with solid
preparation.
Your lawyer should go over with you what you may or may not be
asked. However, your lawyer is not allowed to coach you – i.e. this
means your lawyer cannot tell you what to say. Coaching witnesses is
against the law.
Rule 6: Do Not Argue.
Remember this: Lawyers argue and witnesses testify.
Follow the rules stated in this article, and answer opposing
counsel’s questions to the best of your ability. It is your lawyer’s job
to object to hostile, offensive, or intimidating questions directed at
you. Do not shout back at opposing counsel, even if he or she tries to
get "under your skin." Be as professional as possible.
Keep in mind that you may still be required to answer questions
that make you feel uncomfortable. As long as a question is relevant and
no objections exist to combat it, you may have to answer the question.
Therefore, make sure to prepare mentally for any questions you (and your
lawyer) believe you may have to respond to. It should help to calm your
nerves.
Next, we’ll go over the last 4 rules to be a good witness.
Rule 7: Correct Your Mistakes
No one is perfect and we all make mistakes. If you state something
that is inaccurate, correct your mistake the first chance you get. But
make sure what you said was inaccurate. Obviously, try to keep mistakes
to a minimum. And remember, if you do mess up, make sure you fess up.
Rule 8: Distinguish What You Know From What You Have Been Told
What a non-party to the case (i.e. neither the plaintiff nor
defendant) tells you about something, it is usually hearsay and it can
often be successfully objected to. What you directly hear or see with
your own senses is generally not hearsay and usually cannot be objected
to. In other words, you may not have to answer a question that is based
on hearsay – as long as your lawyer objects to the question. You often
will have to answer a question that is based directly on what you heard,
saw, smelled, felt, or tasted. If this sounds confusing, don’t worry
about it. "Hearsay" can be tricky to determine, and it often takes a
seasoned lawyer to understand all the ins and outs of hearsay.
For purposes of this article, let’s go over a common example to illustrate what you know from what you have been told:
You are standing at the corner of an intersection waiting to cross
the street. Suddenly, a car whizzes by you, knocks over a nearby
mailbox, and continues down the street out of sight. You stand there in
amazement because the car nearly hit you and you barely saw the car.
Later that night a few of your friends tell you that the person in the
car was Al Smith. On the stand, counsel asks you the following
questions:
Counsel: Were you nearly hit by a car at the corner of the intersection?
You: Yes.
Counsel: Who was in the car?
You: I do not know.
This is the proper response. If you had answered "Al Smith," that
would have been hearsay – because you heard it from your friends. There
are many exceptions and exemptions to hearsay, and so your lawyer can go
over the relevant hearsay exceptions and exemptions with you before you
testify.
Rule 9: Do Not Guess If Asked About Statistics
If opposing counsel asks you how fast the car was going in the
above example and you didn’t see it, then say you didn’t see it. If you
did see the car for a moment or two, in most instances you can make an
educated estimate. But make sure to emphasize this point.
For example:
Counsel: How fast was the car going?
Witness: About 35 to 45 mph.
This is a good and fair response, as long as it reflects your best memory.
Rule 10: Take Your Time and Relax
Finally, relax and take your time. This will help you with all of
the above rules, especially with Rule 4 - Think Before Answering. Do
whatever you need to do within reason and remember to relax.
So, now you’ve been informed about the basics in being a good
witness.