Contributed By Richard A. Mann, Richard A. Mann PC
1. Control yourself.
Do not make faces, sigh, grown or communicate in any other way in response to what is said or is going on in a courtroom. This is one of the fastest ways to destroy a case you are there to support. You could even be removed from the courtroom and not be allowed to testify.
2. 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's 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 favourable, witnesses who do not try to conceal some harmful facts will help the case far more than those who slant their story.
3. Listen Carefully to the Question
Wait until the entire question is asked. A very common problem in testifying is that 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. After hearing the question make sure you understand what is being asked. If you are challenged because you delay, just respond that you want to make sure you are answering the question properly. If a lawyer or judge starts objecting or talking during your answer stop talking and wait until the judge instructs you to proceed.
4. 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.
5. Take Your Time
Think before answering each questions. 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!
6. 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's credibility and leave him limping off of the witness stand. If you remember something that nobody would remember you may be perceived as making up your testimony and destroy your credibility. If you have had brain freeze and do not remember your name, your lawyer is skilled in helping you recall things that you knew before taking the stand. Of course, if you cannot remember the answer to anything the opposing lawyer asks you but remember even the minutest detail from your lawyer, the judge or jury may not believe you.
7. Ask for Clarification
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.
8. 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.
9. 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. Also, judges do not appreciate combative witnesses. Judges are very busy people and do not have time for such antics on the witness stand.
10. 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.
11. 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."
Rules, Procedures, and Etiquette
1. Be punctual if you are a party or witness. The Court has a very busy schedule, so you must be on time for your case. If you are late, your case might be heard in your absence or a warrant might issue for your arrest. Make sure you bring all documents that your attorney says you might need for your case.
2. The judicial officer cannot speak to you about your case except when your case is being heard in court and when the other party is there. The Court staff will help you in any way they can, but staff cannot give you legal advice or recommendations on what you should do. Please assist court staff by providing any information that they request as that will assist the Court to run effectively and efficiently. Do not discuss your case on a cell phone or with others in the court house. You never know who is listening in the elevator, hallway, or restroom.
3. Dress with dignity. The court does not require any particular style or standard of dress but it does expect that you dress in a way that is appropriate for the occasion. No low cut blouses, short or tight skirts or dresses. Tattoos should be covered when possible. If you do not own a suit, do not go buy one as you will look like someone who is trying to put forth a false impression. Wear dress pants and long sleeve collared dress shirt if a man or long sleeve blouse with collar, slacks or skirt or pants if a woman. No high heels, sandals, or tennis shoes.
4. Address other people in court only by their titles and surnames, including lawyers, witnesses and court staff.
5. Stand when the Judge or Jury enters or leaves the courtroom. You will notice that immediately before they take their seat and just before leaving the lawyers will stand. This is a traditional way of indicating mutual respect. Similarly, everyone who enters or leaves the courtroom while the court is in session is expected to do so quietly.
6. Address the Judge as 'Your Honor', ‘Sir’, or ‘Madam.’
7. You are not permitted to bring any firearm, knife, or offensive weapon into a court building without permission.
8. Avoid making any disparaging or offensive remarks towards Counsel and others.
9. You must wait either in the courtroom or in the waiting area immediately outside for your case to be reached. If for good reason you have to leave the immediate area of the court before your case is reached, make sure you tell your lawyer or a member of the court staff. Usually witnesses must wait outside the courtroom while the evidence of other witnesses in their case is being heard.
10. The court makes every reasonable attempt to reduce inconvenience to parties and witnesses. However, some delays are unavoidable. If for good reason you need to be called early (for example, if you have a medical appointment), please let the lawyer who has called you know and every effort will be made to assist you.
11. Smoking, eating and drinking are not permitted in courtrooms. Smoking is not permitted in court buildings.
12. Photography, video and sound recording are not allowed in court buildings except with permission. Cameras may not be brought into court buildings without approval.
13. You should turn off your cell phone before entering the court room. This does not mean put on silent or vibrate but it means turn it off. Under no circumstances should you ever take a picture, tweet, or use other social media about the court proceedings.
14. The court's security guards are available to answer your questions and to provide reasonable assistance. In addition, they have the same powers and authorities as police officers in respect of the court buildings and proceedings.
This post was contributed by Richard A. Mann, Richard A. Man PC. If you would like to submit content or write an article for the Family Law Section page, please email Mary Kay Price at firstname.lastname@example.org.