For most people, being called to testify in court or at a deposition is a scary thing. For some, it brings to mind images of brutal cross-examinations in courtroom scenes on TV or in movies. For others, public speaking is terrifying in general, and even more so when the subject matter is personal or emotional.
Chances are, at some point in your life, you will have to testify in court or at a deposition. Here are some tips to help you through the process:
- Know What to Expect
Litigation by nature involves conflict and unpredictability. However, familiarity with the process can make you more comfortable. For example, if you’re testifying in court, you will take an oath, and then there will likely be three parts to your testimony, in this order: direct examination, cross-examination and redirect examination. The attorney calling you as a witness conducts the direct and redirect examinations. The opposing party’s attorney cross-examines you. Leading questions are allowed on cross-examination, but not on direct or redirect. The judge will rule on objections either attorney raises to the other attorney’s questions of you.
In a deposition, the structure is somewhat different, but the rules are the same. You will be under oath. Both attorneys may ask you questions. In both instances, there will likely be a court reporter typing every word that’s said; you may also be audio-recorded. So speak up, don’t talk over others, and answer out loud. Nods or shakes of your head, in lieu of verbal answers, will draw objections.
- Seek Legal Advice
Talk to an attorney before testifying, even if you aren’t a party to the litigation. Although an attorney can’t testify for you, he or she can be present during your testimony to make sure that your rights are protected. Your attorney can also conduct a mock cross-examination to help you prepare and offer valuable advice throughout the process. If you are the victim of a crime, know that the prosecutor represents the government, not victims. Your own attorney can protect your rights as a victim. If you are the defendant in a criminal case, your attorney will advise you whether testifying is in your best interests or whether you should exercise your Constitutional right to remain silent. This is a complicated decision involving many considerations.
- Listen Carefully
Use your best listening skills. In general, answer what’s asked of you without offering additional information. For example, if you’re asked on cross-examination whether you know what time it is, answer “yes” or “no.” Don’t offer the time. On redirect, the other attorney can ask clarifying questions allowing you to explain the answers you gave on cross.
- Tell the Truth
You will be under oath. This means you subject yourself to perjury charges if you lie. So don’t lie.
- Prepare
Practice with the assistance of your attorney. Read or listen to any prior recorded statements you’ve made about the subject of litigation. You may be asked about these statements, particularly if what you say now contradicts what you said before. Be prepared to explain any discrepancies.
- Breathe
Remember to breathe. Ask the attorney to repeat or rephrase a question if necessary. Know that “I don’t know” and “I don’t remember” are acceptable answers, if true.
- Don’t Argue with the Cross-Examiner
Even if a question upsets you, don’t argue. Answer as calmly as possible. Trial attorneys attend trainings where they learn cross-examination techniques designed to rattle witnesses. Once you’re on the defensive, you lose credibility. Keep your cool. FBN
Staci L. Foulks is an attorney at Aspey, Watkins & Diesel, PLLC. She recently joined Aspey, Watkins & Diesel, after practicing as a trial attorney for approximately six years at the Law Offices of the Pima County Public Defender, where she tried felony cases to juries. Foulks is admitted to practice in all state and federal courts in Arizona.
