How to give convincing trial testimony.

Giving testimony in court is much different than a normal speaking conversation.  You might think “all I have to do is tell the truth right?”  If only it were that simple.  Yes of course you will need to tell the truth, but keep in mind that the truth as you see it might not be universal.  Also, there is a difference between simply telling the truth and giving convincing testimony.  Here are some tips I’ve gathered from my experience that will help you give convincing trial testimony.  Some of these may be obvious, but in a tense situation common sense often eludes us.  Keep these tips in mind to give a convincing presentation.

1.  Tell the Truth

There’s an old adage that “the cover-up is always worse than the crime.”  I find that is often the case.  Aside from the fact that perjury is a crime, once you are caught lying, you might never fully recover.  Everything you say from then on is from the mouth of a known liar.  Even if you think the truth will be catastrophic, people can often appreciate the fact that you told it anyway.  Conversely, it’s difficult to empathize with a liar.  If you have a situation where you think you might be asked questions with damning responses, you should talk about it with your lawyer in advance.  Sometimes a particular spin on the truth can make all the difference.  For example, suppose you’re asked about gambling debts.  Response #1:  I had to gamble because my lousy wife made me feel so horrible.  Response #2:  Yes, I have a gambling problem.  I know I hurt my family.  I’m now getting help and trying to make amends as best I’m able.  Do you see a difference?  If you lie about gambling, there might be bank statements, or people who saw you, or even casino security camera footage.  This would obviously be destructive to your case if you were caught.  Furthermore, I think there’s a kind of catharsis in telling undiluted truth.  It produces a sincerity that is nearly impossible to replicate.

2.  Be Direct

It is understandable that people feel helpless on the witness stand.  Often, people will respond to questions by attacking what they think the question implies rather than simply answering the question.  This is problematic in more than a few ways.  First, it comes off as argumentative and evasive.  Suppose you were asked if you spent late hours at the office with your secretary.  You respond saying “My secretary is one of the best people I know.  How dare you insult her that way!”  The question may well imply extracurricular philandering, but the question does not ask if you had an affair.  Another incorrect response would be to answer with a question like “Are you implying that I had an affair with my secretary?”  Witnesses don’t get to ask the lawyers questions.  Only the judge can do that.  Asking the judge or lawyers questions from the witness stand is a quick way to exhaust the judge’s patience.  If the answer is yes, JUST SAY YES!  Your lawyer will have the opportunity to cross examine or redirect you in a way that will clear things up.  For example, if the implication is not true, your lawyer could ask on cross “have you ever had any amorous or romantic interaction with your secretary?”  Then you can give your emphatic no.  Asking questions or being argumentative from the witness stand only makes it look like you have something to hide.  Just answer the question, implication notwithstanding, and let your lawyer show how ridiculous the unspoken suggestion might be.

3.  Typically, you should only answer the question asked with nothing more.

Witnesses often feel like they should add something more or explain something not asked.  Most often, this takes place in the form of anecdotal editorializing.  Suppose the opposing lawyer asks you “did you speak to your wife’s sister after the party?”  You answer “yes, and she was so drunk as usual.  She is always drunk, and she ignores her children.”  Here again, you weren’t asked about your sister-in-law’s sobriety of attention to her children.  The next question might be “how do you know that she is always drunk?”  Of course, you don’t know because you’re not with her every second of every day.  You come off as an unhinged windbag in the eyes of the judge – someone who can’t answer a simple question without putting someone else down.  Do you find people like that generally trustworthy?  I don’t, and most judges don’t.  Moreover, you might give additional ammunition to the opposing lawyer.  In the hypothetical above, you might be asked if you’ve ever left your children with their grandparents for weekend while you spent time with friends.  “Isn’t this also ignoring your children?” the opposing lawyer asks.  So now you’re a windbag and a hypocrite, neither of which help your witness credibility.  Most of the time, if you can answer a question with “yes” or “no” then that is the best answer.  A simple, direct answer is not as vulnerable to innuendo.

4.  If you don’t understand the scope of a question, ask the questioning lawyer to clarify.

Asking a lawyer for clarification, or to rephrase the question, is probably the one exception to the “no questions from the witness stand” rule.  Lawyers will often purposely word questions in a way the opposing witness will not understand.  It’s a way to disarm the witness and make them squirm.  Don’t ever be afraid to say “I don’t know what [unusual word] means.”  If you respond when you don’t really understand the question, how are you going to give helpful testimony?  It’s important to ask for clarification in a generic, con-combative way.  Suppose you were asked “isn’t it true that your tax returns omitted critical information?”  You respond “I don’t know what you mean by critical.”  The lawyer clarifies “omitted important information?”  The lawyer clarified the question, and unless you don’t speak English, you should not what important means.  You can ask for clarification on all kinds of issues e.g. time and scope of questions.  Suppose you were asked, have you ever lied to your wife?  You might want to clarify whether the lawyer means ever or about something specific.  You might want to as if the lawyer means all lies ever or only about important things.  While this seems tedious, it is actually a normal part of the process.

5.  Use qualifiers frequently.

Oftentimes it is prudent to leave a back door on expansive testimony.  Suppose you were asked “Did you ever take your children to the doctor without calling their mother first?”  This question could potentially cover a lot of time and a lot of doctor visits.  You might want to ask for clarification as urged above.  In any event, this would probably be a good place to have a qualifying phrase before your answer.  “As best I can recall” and “To the best of my recollection” are some of my favorites.  It can be tough to remember each and every doctor visit for a year let alone a greater period of time.  If you qualify your testimony, you leave an escape route if something comes up that you did not mention.  Then you can say you didn’t remember that particular visit, and it won’t look like you were lying.  Another helpful qualifer is “I believe…”  If you respond without prefacing, then it will appear as if you are certifying that your answer is definitely correct.  If you preface with “I believe” or “I’m not certain” then you can safely correct yourself later if need be.

These tips are not everything you will need to know.  I you have concerns, meet with your lawyer to discuss them well in advance.  There is no substitute for preparation.  However, if you keep these tips in mind, you will have a good head start.