Testifying in court is stressful and difficult, and part of a trial lawyer’s job is to help prepare clients and witnesses for to testify. It would be nice if a jury could always see whether a witness is telling the truth. Unfortunately, believability is based only in part on truthfulness, and is also based on other things.
ONE
Your appearance, demeanor, and behavior should reflect the gravity of the proceedings. This applies when you get out of your car or off the bus and start walking to the courthouse, and it still applies in the hallways, waiting in line to get into the court, and in the bathroom. You never know when a juror, judge’s clerk, or witness is watching. A good impression might help, and a bad one can surely hurt you.
TWO
Before the trial starts, look around the courtroom. Figure out where the witnesses, attorneys, and jury will be, and also how to get where you need to be. Most courtrooms have a low wall or divider (called the bar) between the public gallery and the tables for the attorneys, and the bar may have a non-obvious swinging door or other barrier. If you know your way around the courtroom, you will look more confident and trustworthy.
THREE
Dress professionally and conservatively, like a presidential candidate or a bank manager. Avoid flashy colors, or excessive makeup or jewelry, especially for men.
FOUR
Sit up straight. Look at the questioning attorney while questions are being asked. Look at the jury and make eye contact while answering. Speak slowly; it’s easy to speak faster mumble when you’re nervous.
FIVE
Answer all questions clearly. Do not waffle, obfuscate, or evade. The questioning attorney is unlikely to let you get away with it, and the jury won’t like it. If your answer is bad for you, then the jury will hear the bad answer. It will just call attention if the attorney has to drag it out of you.
SIX
Answer questions simply, and do not add extra information. Use as few words as possible to give a truthful answer, especially on cross-examination. It’s the attorneys’ job rather than yours to decide how much detail and when the detail is distracting or harmful, maybe for reasons that you don’t know.
SEVEN
If evidence you want to offer has been ruled inadmissible (because it’s hearsay, for example), don’t try to slip it in and hope no one notices. Someone will notice, and you could be held in contempt or cause a mistrial for offering evidence that the judge told you not to.
EIGHT
Answer out loud. The judge is likely to correct you if you don’t, and you’ll look better if you aren’t corrected by the judge. The trial is probably being recorded or has a stenographer taking down everything you say. The stenographer can’t take down your nods, gestures, vague mumbles, or mm-hmms.
Sometimes testimony is partly visual; for example, you might refer to a diagram of an intersection to explain how an accident occurred. In that case, you should describe what you are saying so a blind person could understand.
Instead of “The blue car was going here, and I was stopped here, and the blue car struck me here,” say “The blue car was traveling south on Main Street, and I was stopped in the turn lane here, waiting to turn into the parking lot, and the blue car hit me from behind on the passenger’s side.” You can point as you do that, but without the explanation it won’t make any sense if an appellate court has to understand the facts later.
NINE
Keep your hands in your lap. Keep them away from your mouth. Touching your face makes you look less credible, but some people do that naturally when they’re feeling nervous.
TEN
Listen carefully to the question. Make sure you understand it before you answer. If you don’t understand, or if the question can’t be fairly answered (if it assumes facts that are not true , for example), ask that the question be explained or explain the problem with the question.
ELEVEN
If either attorney objects, stop talking, even mid-sentence, until the judge rules.
TWELVE
Don’t argue with the attorney. You will probably lose, because the attorney is entitled to ask questions and insist that you answer, and you can’t ask questions in return. It’s not supposed to be a debate; don’t treat it like one. If the attorney is aggressive and obnoxious and you are calm and unruffled, you will look better and more believable to the jury.
THIRTEEN
Know your facts, but don’t memorize testimony. If you look rehearsed during direct examination, the jury is less likely to believe you, and it won’t work well during cross examination, where the questions will not be the same. Try not to repeat the same language as you used in a deposition or written report.
FOURTEEN
If the other side asks a question that you think is objectionable or improper, pause briefly to give your attorney time to object. If there is no objection, answer the question. If you want to object on your own behalf (because, for example, you’re a witness and you think you don’t have to answer as a result of the privilege against self-incrimination or spousal privilege), say so. You can ask for time to consult with a lawyer, or ask the court to appoint a lawyer.
FIFTEEN
Avoid looking at your attorney, or at sympathetic witnesses or parties when answering questions. It can look like you’re asking for help and can suggest to the jury that the question is damaging. Even if it is, you won’t make it better by squirming on the stand.
SIXTEEN
If you make a mistake, in testifying, or in prior statements, or before the legal proceedings, be prepared to admit it. The real harm is not the mistake, because everyone makes mistakes and the jury might forgive you for that. The real harm is lying afterward.
SEVENTEEN
Most important of all, tell the truth, and tell nothing but the truth. The traditional command to tell the ‘whole’ truth always struck me as confusing, because you are not allowed to tell the ‘whole’ truth in the sense of everything that you think is relevant. You are required, of course, to provide a ‘whole’ answer to the question.
Never lie on the stand; lying on the witness stand is a crime. Of course there are bad facts for your side. If all the facts were good for you, the case would probably have settled without trial. But if you lie, the bad facts will probably come out anyway, then your lie will prevent the jury from believing your other testimony.
Of course, there are other things that you should know, especially if you are a party rather than a witness. Talk to your attorney about those things, and about whether the advice I give applies in your case. Every case is different, but most of this advice applies to any case.
