A Formula for Being a Good Witness
For some employers, the thought of testifying in court is terrifying. Finding oneself subpoenaed to appear in a formal courtroom setting and having to remember minute details about a serious workplace situation that could have occurred years ago can be stressful. Fortunately, it doesn’t have to be that way. To testify effectively, keep in mind the following tips before taking the stand.
There is more to testifying than simply relaying the facts of a situation. Most people don’t realize that preparing for a hearing is crucial to being a good witness. Before the hearing, good witnesses will:
- Discuss the case, arguments and themes with a lawyer to ensure a thorough understanding.
- Review and understand key documents.
- Be prepared to disclose any documents reviewed.
- Remember key points and themes without trying to memorize the entire testimony.
Importance of Impressions
A person can become so consumed with the idea of serving as a witness that he or she may forget the most obvious and important tips for effective testifying. Impressions carry credibility, and arriving to testify looking fully rested, refreshed and conservatively dressed will increase your odds for conveying credible testimony. Other important reminders for creating the right impression include:
- Keep cell phones, pagers and other electronic devices turned off.
- Avoid nervous humor, because a flippant remark is often misconstrued in a transcript.
- Be serious and sincere.
- Refuse to argue or to give in to emotion.
- Remember that opposing counsel is not on your side.
- Act civil but avoid socialization.
- Make eye contact with the questioner.
- Stay collected and focused.
- Don’t look to your attorney for help while answering questions on the stand.
- Ask for breaks if needed.
The Truth of the Matter
When serving as a witness, perhaps the most significant thing to remember is to stick to the truth. This may seem easier said than
- A question can’t be answered if it’s not understood, so make sure to thoroughly understand the entire question and ask for clarification if needed.
- Pause and reflect before answering and listen to the question in its entirety.
- Only answer what is known.
- Answer directly and confidently, giving short, concise answers.
- Do not make assumptions, guess or speculate and avoid using absolutes such as “never” or “always” unless you are 100 percent sure.
- Do not think out loud.
- Remember the differences between, “No,” “I don’t know” and “I don’t recall.”
- Beware of compound questions and don’t let opposing counsel put words in your mouth.
When being questioned by opposing counsel, the goal is to directly and concisely answer inquiries without elaborating or adding further explanation. It’s similar to dental surgery—you want to get in and get out as quickly and painlessly as possible.
Be sure to answer with brief “yes or no” answers and don’t go beyond the question. Doing so will often prolong the proceeding, lead to critical or fatal mistakes or unnecessarily divert attention to other issues or witnesses.
Although your attorney can’t answer for you, he or she will serve to prepare and guide you through the testimony process.
It’s critical to work with your attorney and to trust the advice given. Good witnesses will cooperate accordingly and remember the following tips:
- Review the case and any questions or concerns about it with the attorney in advance.
- Fully disclose any hidden “skeletons” to your attorney.
- Allow time for the attorney to make objections and listen to your attorney’s objections and instructions.
- Do not argue with or ask opposing counsel questions.
- Understand the attorney-client privilege of confidential communication.
Being subpoenaed to serve as a witness doesn’t have to be a dreaded duty. By preparing well, making a credible impression, keeping the truth in mind at all times and working with your attorney, the stress of testifying in court can be greatly reduced, resulting in a much more effective experience.
About the Author
Andy Hament, a partner with FordHarrison LLP, represents management in all areas of employment and labor law.