You, the Witness.

Posted By Cliff Tuttle | March 5, 2019

No. 1,623

You raise your right hand and swear an oath to tell the truth.  Then you have a prolonged conversation, in front of everyone, with your lawyer.  He/she asks questions, you answer.

Image: ncaph.com

It seems simple enough.  But here are a few things you should know and keep in the front of your mind.

1.  You are on stage. You are being observed.  Sit up straight.  Be serious but polite. But be yourself — on your good behavior.
2. Visit the rest room before the proceedings begin.  Check your hair in the mirror. Straighten your tie.  Don’t wear a hat in the courtroom.
3. Listen to the whole question before you begin to answer. Pay attention.  Don’t make the common mistake of thinking you know what is being asked from the first few words.
4. Answer the question you are asked.  Don’t seize an opening to digress from the point at issue.
5. Don’t be in a hurry. Don’t get ahead of the question. It may take a series of questions to reach the point. If the questions are well-prepared, they will enable to you testify seamlessly to a series of facts that lay a foundation.
6. Be aware that it is usually necessary to lay a foundation before introducing documentary evidence. You may be asked if you signed a certain contract or took certain photographs and when that act was performed. It is ok to look at the document or documents for a few seconds before answering.
7. Don’t grab an opportunity to take a personal swipe against your opponent.  Don’t try to joke.  Attempts to be funny or appear lighthearted usually fall flat.
8. Be aware that there are topics that your lawyer does not wish to bring up, even though you see an opening to do so.
9. Your lawyer cannot ask you leading questions.  When he or she asks you to tell the story of the relevant events on a particular day, do it. But don’t ramble on and on.  There will always be another question.
10. If the opposing counsel interrupts your testimony with an objection, stop talking, even in mid-sentence.  Wait for the judge or presiding officer to rule on the objection.  If the objection is overruled, you may continue with your answer.  If the objection is sustained, wait for another question. Never try to talk over the other lawyer, or especially the judge or presiding officer. Don’t try to squeeze the objectionable testimony in later.  There would be another swift objection and (at minimum) you will look bad for trying. This is especially true when a jury is hearing the case.  The judge may threaten sanctions.
11. On cross-examination, the questioner is able to ask leading questions.  Answer them truthfully but carefully.
12. If the questioner cuts you off, or refuses to allow you to explain, your lawyer has the opportunity to return to the subject with re-direct examination after the cross-examination is over.
13. Don’t overlook the possibility that your lawyer may prefer to address a particular subject through testimony of another witness.
14. Don’t allow yourself to be drawn into an argument with the opposing counsel, even if he or she is treating you unkindly.
15. Don’t turn to another witness or your lawyer for help with an answer.  If another witness is testifying, don’t call out the answer or start waiving your hand.  Write it down and hand your note to your lawyer.
16. Be aware that your lawyer is listening to the proceedings and concentrating on the next thing to say when the other side is presenting its case. Do not try to talk.
17.  Never gasp out loud or express surprise or derision while your opponent is testifying.
18. Do not discuss the case with anyone but your lawyer while in the courtroom.  If the opponent says hello, acknowledge the greeting politely.  If the opponent wants to talk, tell him or her to talk to your lawyer.
19. After the case is over, gather up all of your belongings and leave.  You can talk with your lawyer afterward, at a suitable location.  Remember, corridors have ears.  So do elevators.

CLT

Welcome

CLIFF TUTTLE has been a Pennsylvania lawyer for over 45 years and (inter alia) is a real estate litigator and legal writer. The posts in this blog are intended to provide general information about legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus. However, this information does not constitute legal advice and there is no lawyer-client relationship created when you read this blog. You are encouraged to leave comments but be aware that posted comments can be read by others. If you wish to contact me in privacy, please use the Contact Form located immediately below this message. I will reply promptly and in strict confidence.

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