PREPARING AS A WITNESS

I. GOLDEN RULES OF GOOD WITNESSES

A. ANSWER ONLY THE QUESTION ASKED: This is the most difficult concept for many witnesses, who are accustomed only to conversational dialogue. It is important to recognize that testimony is not conversations, rather it is an exchange back and forth between examiner and witness. It is the lawyer's job to ask the right questions, and the witness need only answer those questions asked. Example: in conversation, a person may ask "Do you know what time it is?", and the proper response is "Yes, it's about 5:00 p.m." In testimony, however, when the examiner asks "Do you know what time it is?", the proper answer is "yes." The witness should make the examiner ask the next question, which is "What time is it?", to which the witness can then respond "about 5:00 p.m."

B. LISTEN CAREFULLY TO THE QUESTION ASKED: If the question is not understood, the witness should say so. But the witness should not rephrase the question or try to restate what the examiner seems to be driving at. Additionally, the witness should not rush to answer, because the transcript - by its nature - does not indicate the lapse of time between the question and the answer. Furthermore, a witness who takes sufficient time to answer a question will be more apt to give a thoughtful response and allow a timely objection if need be. Finally, the witness must listen to the question in its entirety and not interrupt the examiner before the question is completed, even though one thinks one know what he examiner is going to say.

C. DO NOT EXPLAIN ANSWERS UNLESS ASKED TO DO SO: The witness should be full and complete in each response to the question asked. However, because of the back and forth nature of examination, many answers may seem awkward or out of context before follow-up questions are asked. The witness should expect such occasional awkwardness, and remember that one's job is only to answer the questions asked. The lawyer must ask the right questions. Don't offer!!

D. DO NOT GUESS OR SPECULATE: Examinations call only for the witness' personal knowledge. It is helpful to also remember that the witness, unlike at a test or quiz in school, will always have the correct response - either one will: 1) know the answer, 2) be unable to recall the answer, or 3) will not know the answer. These constitute the complete basis for a correct response.

E. NO "OFF THE RECORD" STATEMENTS BY THE WITNESS: The witness should know that lawyers, on occasion, will make statements or comments "off the record." However, everything the witness says will be on the record.

F. GIVE VERBAL RESPONSES: The witness' testimony is being transcribed based exactly on what is said. Accordingly, the witness should answer "yes" or "no" rather that "uh-huh", "uh-uh", "nah", or "yuh". Additionally the witness should verbalize descriptions as to distance, size or location because the gestures cannot be recorded. Similarly, the witness should not use head nodding or shaking as they cannot be transcribed. All responses must be verbal.

G. THE SUBSTANCE OR GIST OF CONVERSATIONS WILL SUFFICE: Some of the questions may seek information regarding conversations with other persons. When a witness remembers precisely what was said by whom and in what order, one may be told to testify to the best of one's memory. However, if the witness does not recall precisely what was said, the answer should be regarding the "substance" or "gist" of the conversation.

H. DOCUMENTS ARE NOT GOD: A witness may be shown documents during the course of the examination, including documents with their own signature. Remember that the examination seeks one's personal knowledge at present, and the mere existence of a document does not mean that the act or transaction described in the document necessarily occurred. Many witnesses may tend to say "if that's what it says it must have happened", but the witness should be prepared to rely on memory independent of the document.

I. IGNORE OBJECTIONS: Many witnesses will try to read something into objections as to form, to the detriment of their testimony. Accordingly, the witness should ignore objections, and - in the unlikely event that the witness will be instructed not to answer - the lawyer will make it clear that the witness should not answer.

II. QUESTIONS TO WATCH OUT FOR IN CROSS EXAMINATION

A. CATCH-ALL QUESTIONS: The examiner may seek to "shut the door" by asking an all-encompassing question at various points in the examination. The witness should leave the door open by qualifying the response with: "To the best of my memory," or "that's all I can think of right now."

B. DON'T LET LAWYER PUT WORDS IN YOUR MOUTH: Lawyers may try to paraphrase or restate one's testimony. Example: the lawyer may ask "So it is fair to say that your testimony is ..." or "I understand your testimony to be then ..." or "So you are saying that ..." In these instances, the witness must pay particular attention to what the lawyer is saying, and agree only if it is a precise restatement of one's testimony. Otherwise, the witness should say something to the effect that "My testimony is whatever I just testified to."

C. SPECULATION WARNING FLAGS: Oftentimes, an examiner will attempt to have the witness engage in speculation. Accordingly, the witness should watch for various "flags" that indicate when speculation is being called for. Example: When a lawyer asks a question that something is "possible", "probable", "likely", "could it", or "might it" and so forth, the witness should see that the proper answer is "I do not speculate."

D. YES OR NO QUESTIONS: The witness should be aware that lawyers will try to have them answer a question "yes" or "no". In those cases, if a question can in fact be answered with a yes or no, the witness should do so. However, the witness should also note that if a question cannot properly be answered yes or no, the answer should be "I cannot answer that question yes or no." The witness should not then explain why he cannot answer the question as asked unless the examiner then asks for such explanation. Don't offer!!

E. LACK OF MEMORY: Sometimes the examiner may follow-up an answer that the witness does not remember with a question trying to put the lack of memory into an affirmative form. Example: "So you don't remember seeing that the heating system boiler was cracked?" The proper answer in such a case is "I do not remember one way or the other." This is the old, "When did you stop beating your wife?" ploy.

F. TIME AND DISTANCE QUESTIONS: Sometimes lawyers may try to get you to back down from responses regarding time, distance, quantities, amounts, frequency or occurrence, and the like. Example: After a witness testifies that the frontage was "125 feet", the lawyer will then ask "Could it have been 120 feet?" or "Could it have been 123 feet?" While these questions border on speculation, they usually may be in a range that is reasonable, i.e., 125 feet could well be 124 feet. However, when the lawyer tries to back one away from one's testimony, there will come a point at which the questions depart from the witness' best estimate. At that point, the witness responds "My best memory is that is was 125 feet." Nail it down!!

G. DO NOT ARGUE OR GET UPSET: Lawyers may be rude, argumentative, or brusque in behavior and the witness should not get into an argument with the lawyer or become otherwise upset. If the lawyer makes a snide comment or statement, the witness should remain silent until asked a question. The job of the witness is to answer questions. If statements or comments are being made rather than questions, the witness' response should be either silence or the following: "Is that a question?" The witness should let one's counsel do the arguing on his/her behalf and not join into arguments between counsel.