Honesty is always the best policy.
Witnesses must testify as accurately as possible about what they
know, what they heard, and what they did.
If they encounter a question, which they cannot answer without 100%
certainty, they should avoid a yes or no answer and reply that they are
“testifying from memory,” and their answers are “accurate to
the best of my ability to remember.”
Don’t lie or be evasive in answering questions; either will hurt
The best way to do this is by giving a one-sentence
answer, or very short answers, and, then, keeping quiet.
That way, you force opposing counsel to ask specific questions.
Answer only the question(s) asked. Speak clearly without non-verbal communications (eg nodding yes or no with your head).
Who, what, when, where, why and how questions may
sometimes be answered with a single word or phrase. However, witnesses should be ready to give a full and
accurate response to follow up questions.
When witnesses finish responding to an open-ended
question, they should say these magic words “that’s all I can
recall at this time.”
Witnesses should ask if they can briefly explain an
answer to a question that calls for a yes or no answer.
Witnesses should listen closely to each asked
question and think about the question before answering it.
Therefore, they will avoid misinterpreting questions or giving
damaging answers, and allow them time to couch their answers in words
that will have a positive effect on their overall testimony.
Have a witness use the word “approximately”
when they are not absolutely sure of a time or date.
Witnesses should never guess at an answer without
explaining that they are estimating.
Whether witnesses draw a subjective or factual
conclusion in their answers, they should have a supportive basis for
Words like “never” and “always”
should not be used answering questions.
These words can be used against them, and are not necessary to
fully answer questions.
Familiarize witnesses with opposing counsel’s
personality and tactics before the deposition takes place or the trial
begins. Then, they will
know what to expect.
Witnesses should not try to intimidate opposing
counsel (eg. arguing, making unpleasant facial expressions, or insulting
the opposition). The jury
will not sympathize with a bully. Always
be positive and polite when testifying.
If you feel you are tiring and need a short break, ask for one;
it will be granted.
Instruct witnesses not to interrupt opposing
counsel’s questions; because that can open up the door for
another dozen questions witnesses may not be prepared for.
If a witness’s statement is interrupted by opposing
counsel, make sure the witness lets the attorney go ahead and finish
speaking. Then, the witness should say “I’m sorry, but I haven’t completed my
answer to the previous question.”
The record will contain this interchange.
Witnesses should tell opposing counsel that they do
not understand the question and ask for clarification; or they could ask
opposing counsel to restate or rephrase the question. Both ways give witnesses more time to collect their thoughts
Courteous witnesses make a positive impression on
jurors and judges (eg. instead of saying merely “yes” or “no” a
witness could say “yes sir.” This
shows respect, no matter what the opposing counsel resorts to.
Witnesses should try to overcome being nervous or shy
and speak to the members of the jury as if they were neighbors and
friends. Witnesses should
look at the jurors most of the time instead of looking at the lawyer who
is examining them.
Make sure your witnesses dress and behave
appropriately (eg. if your witness is a police or fire officer, have
them wear their uniform; it improves credibility). Witnesses should
dress neatly as they would be for a celebration dinner, or Sunday at
If your witness is going to be asked to draw a diagram or sketch a scene from memory while testifying, then, go over the specifics of the visual aid before they testify. If your expert witness requires demonstrative evidence or exhibits for deposition or trial, start working early with your witness and an Exhibit Specialist to evaluate the need for exhibits, thereby, allowing sufficient time to create and produce whatever is needed.