This Legal Lines article was written by Thomas S. Rice and Eric M. Ziporin of the law firm of Senter, Goldfarb & Rice. The firm is a member of CIRSA’s defense counsel panel, and provides legal services to CIRSA and its members in a wide variety of claims. Mr. Rice and Mr. Ziporin welcome any questions regarding this article and will be happy to provide additional information upon request. They can be reached at 303.320.0509.
Testifying in court is a stressful event that very few people look forward to. But as a municipal official, there is a good possibility that, at some point in your municipal career, you will be called on to testify as a witness in a deposition, hearing, or trial. For some municipal officials, such as police officers, the witness chair is a familiar place. But elected officials may be called on to testify in land use matters and other high-level decisions in which they participate. Managers and supervisors may have to testify concerning employment-related decisions they make. Even line personnel, such as water, wastewater, or street personnel, may be called to testify in property damage or personal injury cases. This article introduces you to some of the dos and don’ts for witness testimony.
Witness testimony can make or break the defense in any given case. So when called upon to testify, it is critical that you are not only well prepared and knowledgeable about the case, but that you are also familiar with the process and the basic rules surrounding successful courtroom testimony. This article is meant to provide the reader with the basics of courtroom testimony, to include things to think about prior to trial as well as when you are sitting in the witness chair at trial. Following these basic practices will help you toward achieving the overriding goal of your testimony – establishing credibility with the jury by being truthful, accurate, and honest.
Why Is My Testimony Necessary?
Evidence at trial consists of documents (e.g. written, photographs, diagrams, etc.), tangible items (e.g. recordings, weapons, demonstrative exhibits, etc.), and witness testimony. By far and away the most compelling evidence comes from live witness testimony.
If you are asked to testify by a party in a case, or if you are served with a subpoena to appear in court, your first question will likely be “why me?” You have likely been selected to testify because you have personal knowledge about facts that are relevant to an issue that is in dispute. Perhaps you are needed to support the defense of the case, or maybe the other side thinks that you have information that might be helpful to their case. Either way, both sides need witnesses to establish facts necessary to prove their claims and defenses. The most efficient and compelling way to do this is through witnesses. From our perspective, at trial our witnesses become the “face” of our case, and it is through these witnesses that we build our defense and establish our credibility with the jury.
Direct vs. Cross-Examination
The type of examination that takes place depends on which side of the case calls you as a witness in support of their case. If you are first called to testify by the other side, you will be subjected to cross-examination. If called first by our side of the case, you and counsel will participate in direct examination. In either scenario, the other type of examination will likely immediately follow in order to avoid you having to come back to court and testify again at a later date.
Cross-examination is an “attack” from the adverse party. The attorney can ask leading questions and will attempt to get you into a rhythm of answering questions the way that he/she wants you to. Be mindful of that and slow things down. The attorney will also attempt to impeach you by attempting to point out inconsistencies in your testimony. Cross-examination also has the element of the unknown as you will not know ahead of time the specific areas of inquiry.
On the other hand, direct examination is the chance for you to tell your story. You will be asked open-ended questions and will provide longer, narrative responses to the questions. There is also the benefit of knowing in advance the nature of the questions that will be asked based on your pretrial preparation with counsel.
What Juries Like/Dislike
What juries like can be identified by a simple acronym: CIRR: credible; informed; reasoned; and resolute. Jurors believe witnesses that are credible. They want to hear from a witness that is not only informed about the case but who also help them understand critical issues that are in dispute. A witness that is reasoned and makes sense also goes a long way toward influencing the jury. And finally, jurors tend to believe witnesses that are resolute and not wishy-washy on the witness stand.
Conversely, jurors do not like witnesses who make inconsistent statements and are uncertain about their testimony. Jurors (and the judge) also do not like witnesses who avoid answering the question or are unnecessarily combative with counsel. These witness behaviors negatively impact the likelihood that the jury will like you and view you as a credible witness.
Importance Of Preparation
There is simply no substitute for being prepared. Everyone who appears in court is nervous, and the best antidote for nervousness is preparation. If you know you are prepared, you are confident during your testimony. Confidence builds credibility with the jurors. As the “voice” of the case, the jury will expect that you are prepared and that you know the facts of the case.
If you have given a prior statement or had your deposition taken earlier in the case, it is crucial that you have a complete handle of those statements prior to testifying in court. Those statements need to be read multiple times and essentially memorized in order to avoid testifying at trial in a manner which is inconsistent with those statements. Detailed preparation will also lead to a practiced and smooth presentation in court.
Another critical area of preparation will be to anticipate the attack from the other side. These areas may be obvious given the particular nature of the dispute. However, if they are not obvious, you can identify areas from your deposition that the attorney really honed in on and you can expect that same line of inquiry at trial.
“Rules Of The Road” For Cross-Examination
Cross-examination is by far the most stressful part of courtroom testimony. Below are 7 common sense rules to guide you through that process.
Rule 1: Make sure you understand the question.
Before you answer, make sure you understand the question that is being asked. Maybe you did not hear the question or you were distracted for some reason. The question may be convoluted and confusing. Perhaps counsel used strange or unknown verbiage. Whatever the reason, ask for clarification as many times as you need before you answer to ensure that you fully understand the question. But be careful not to play “word games” with counsel as doing so is unnecessarily combative and can lead to the loss of credibility with the jury.
Rule 2: Do not volunteer.
Once you have heard and understood the question, only answer that which is being asked. Focus only on the information sought by the question, and use short, concise, to-the-point answers. If you can answer a question accurately with a “yes” or “no” – do it. Resist the temptation to say more than is necessary and instead answer the question truthfully, honestly, and accurately. Volunteering information may lead counsel down a line of inquiry that he/she neglected to think about prior to trial. Remember – direct examination is your time to tell your story.
Rule 3: No guessing.
If you do not know the answer – say it. Answering a question with “I don’t know” is truthful, accurate, and honest if you truly do not know. This also holds true for answers that you do not remember. Do not allow your answer to change simply because counsel does not like your answer and asks you the same question more than once. Be mindful of time and distance questions. Lawyers love to pin down witnesses for specifics, but if you do not know, simply say that you cannot answer the question because you would be guessing.
Rule 4: Take your time and be patient.
There is no need to rush your answers. Take the time to pause before you answer to allow time to think. If you are trying to rush to get off the “hot seat,” speed will likely trump the goal of being truthful, accurate, and honest. It will be over soon enough, so just hang in there and focus on accuracy.
Rule 5: Finish your answers and correct misstatements.
If counsel interrupts you and you have not finished your answer – say so. If you realize at some point that you inadvertently made a previous misstatement, correct it at your first opportunity. Admitting misstatements as soon as possible and correcting them builds credibility with the jury and can avoid having those misstatements magnified by opposing counsel later on in your testimony.
Rule 6: Read before you answer.
If you are asked to comment on a document, read it before you answer. Do not assume that you know what it says. Also make sure you ask to see a document if you need it to answer the question. If counsel refuses to show you the document, he/she will look silly and seen by the jury as engaging in unnecessary gamesmanship.
Rule 7: Do not get mad.
You need to go into the courtroom with the agenda of staying calm. Many lawyers employ the strategy of playing on a witness’ emotions, and you will both frustrate the lawyer and build your own credibility by keeping your cool. Sometimes we say things that we do not mean when we get mad, and that is the last thing you want to do when you are under oath.
“Rules Of The Road” For Direct Examination
For the most part, simply reverse the rules of cross-examination. This is the time to tell your story to the jury. The questions that are asked will be open-ended. Expand your answers and serve as a guide for the jury to understand the defense to the case. Jurors want to hear from witnesses – not lawyers – so let your attorney be the facilitator and you should serve as the “voice” of the case.
These are just the basics of courtroom testimony. You can rest assured that your CIRSA appointed attorney will meet with you in advance of trial and not only advise you of these basic rules, but also work with you to develop a game plan as well as identify those likely areas of “attack” from the other side.
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