Being a Witness

This LegalCapsule,™ prepared by the Auerbach Law Firm, is a plain-English explanation of being a witness. In an effort to be brief, many points may be oversimplified. Readers are therefore cautioned to check with our offices or another lawyer as to the particulars of their case; this generalized information should not be construed to be formal legal advice.

Tell The Truth.

This advice may seem obvious. However, individuals involved in legal proceedings often become emotionally involved in the outcome of the dispute. The temptation to incorrectly embellish or falsely exaggerate, especially small details, arises. This must be avoided. Every witness takes an oath to testify truthfully.

Answer The Question, No More.

Strange as it sounds, this is often a difficult rule to follow, since there is a temptation by a witness to explain all that is related to the subject of the questions. Try not to feel uncomfortable about this. Additional information can be brought out with additional questions. Parties to a lawsuit often provide a basis for cross examination with a statement that was needlessly made while answering a question during direct examination. Thus, a question that asks "Did you see anyone arrive at the scene of the accident," should be responded with a "Yes," "No" or "I do not recall." By answering that question with the names of the persons who arrived at the scene of the accident (for example), a witness is providing information that was not requested.

Use Plain English.

The most effective witnesses testify in language that they normally use and find most comfortable. Jurors are accustomed to hearing and understanding conversational language. The testimony of a witness who uses language that is unnatural may be confusing and may lack credibility. Therefore, a witness who is comfortable with the words "He got out of the car" should say that, and not say "He emerged from the vehicle." In other words, be yourself.

Do Not Memorize.

Just as a witness should use familiar language, a witness should respond to questions in a natural, relatively spontaneous manner. Memorized testimony will appear artificial and will lack credibility. Moreover, witnesses will likely forget their "script," and thereupon become confused and disoriented. Of course, a witness should be prepared, in a general way, for the questions to be asked and the answers to be given.

Do Not Guess.

In almost all circumstances, witnesses are only asked to testify as to information about which they have personal knowledge. Thus, witnesses should not guess at the answer. If the witness does not know the answer, there is nothing wrong with stating "I don't know" or "I don't remember," rather than guessing at the answer. It is a good idea for the witness to pause for a moment before answering so as to absorb the question and think about the answer.

In addition, a rule widely followed in courts, known as the "hearsay" rule, prohibits a witness from testifying as to what someone else told them or what they heard outside the court, in order to prove the subject of the statement. Therefore, if you were asked the question "Did the driver get out of the car?" it would be incorrect to answer yes or no unless you personally observed the driver and the car. Simply because you may have been told by another person that the driver got out of the car, that information does not give you personal knowledge of that fact.

Finally, a witness cannot answer a question that is not understood. If a question is unclear, the witness should ask that it be repeated or rephrased, rather than guessing at what the question may be.

Create A Good Impression.

First impressions are often lasting impressions, and an impressive witness should bear certain tips in mind:

Do not argue with the lawyer asking the questions. Do not say "You asked that question already." Even if the witness thinks the question is repetitious, the witness should courteously answer it again.

Do not try to outwit the lawyer or answer sarcastically.

Dress appropriately. A witness should be carefully groomed, and should dress conservatively considering their age and background.

It is natural for a witness to be nervous. This anxiety can be reduced by preparing for the testimony, such as visiting the courtroom in advance to become familiar with the surroundings, and reviewing the expected questions and the information to be provided in the answers. Mostly, nervousness can be reduced if the witness remembers that the judge and jury are ordinary people who understand the witness's anxiety. A witness should try to relax as much as possible and be as natural as possible.

There is no such thing as a perfect witness. By following these guidelines, however, thetestimony to be offered may be delivered in a natural, understandable and credible way.