At some point in the legal process, you may be asked to give testimony, to testify, to be sworn to tell the truth and answer questions under that oath. Testimony can take place at a hearing, trial or deposition. The testimony will be recorded, either on tape or by a court reporter, and can be later transcribed and put into a written memorandum.
Here are some tips about testifying:
1. Tell the truth. Do not exaggerate. Do not anticipate whether your answer will help or hurt your case. The truth will never hurt you, but lies will surely come back to haunt you. Telling the truth means more than refraining from telling a lie: it means testifying accurately to the best of your ability to recall. If you tell the truth and tell it accurately, no one can cross you up by asking you events out of sequence or in the negative. Only liars need to remember what they said so that they tell it the same way time after time. Truth tellers need not worry about remembering what they said as long as they speak the truth at all times.
2. Listen to each question carefully and make sure you understand the question before answering. Do not start to answer before the whole question is asked. Be sure you hear the whole question, and if you did not hear every word, ask that it be repeated. If you do not understand the question, ask that it be asked in a different way.
3. Take your time in giving an answer. Give each question the thought it requires before speaking. Do not give a snap answer without first thinking it out. The transcript only shows the answers, it does not state the time between a question and an answer.
4. If your lawyer, who is there to protect you, objects to the question, STOP speaking immediately. The hearing officer (Judge or Magistrate) will either overrule the objection (in which case, you must then answer, or if you don’t remember the question, ask that it be repeated) or sustain the objection (in which case, you are not to answer).
5. When questioned by anyone other than your lawyer, do not volunteer information not requested, do not help the questioner, do not elaborate on your answer.
6. Do not be afraid of silence. The other lawyer may be thinking of the next question, so do not be tempted into filling the silence with words. Do not volunteer information: answer only the question asked and no more; do not ramble or elaborate.
7. Beware of compound questions and answer only one question at a time. Sometimes multi-part questions are asked and that can get confusing. You can ask that only one question at a time is asked.
8. If you are asked the same question more than once and your original answer was accurate, stick to that answer, even if you are challenged.
9. Don’t let opposing counsel shake your confidence in the truth you are speaking. Never try to explain or justify your answer because doing so might make it seem that you doubt the accuracy or authenticity of your testimony.
10. Give only the information readily available to you. If you do not know the answer to a question, do not guess or estimate, but state you do not know. You must testify as to your current ability to recall the information. If you knew the answer sometime in the past but do not remember now, state that you do not remember. Do not promise to get information that you do not have, unless your own attorney advises it. Do not volunteer to obtain documents or ask me for documents or information. Do not reach into your pockets, briefcase, pile of papers, etc. for information. “I am unclear about the information” and “I would need to check before I answer that question” are acceptable answers, but don’t offer to get back with the right answer; just answer to the best of your ability right then. There is a way to refresh your recollection if you exhaust your current ability to recall information you once had, and you must trust me to be able to do so in accordance with the Rules. If I hand you a thing to try to refresh your recollection DO NOT READ from it, just use it to refresh your memory, put the item down, and testify from your memory which is now refreshed.
11. If you are shown documents, always take your time and read them carefully before making any statement about them.
12. If an answer you gave was wrong, say so immediately when you recognize the error.
13. Be certain of your answers. Banish words such as “maybe”, “I guess” and “kind of” from your vocabulary because it makes you sound like you are guessing. If you say “to tell you the truth…” or “in actuality…” you are implying that everything else you had previously said was not the truth, or not actually true, so get rid of those phrases, too.
14. Never joke or make wisecracks. Humor will not be apparent in a transcript.
15. Do not argue with opposing counsel. Do not give evasive answers. Do not answer a question with a question.
16. Do not get angry. No matter how hard you are pressed, maintain your composure. If you become angry, you are less likely to be fully thinking and more apt to say things you do not mean to say. If the other lawyer shouts at you, do not respond in kind.
17. Be straightforward, clear and concise. Be attentive. Be polite, impersonal, and calm. Show respect, especially to the hearing officer. Do not be too friendly with opposing counsel when off the record, remember that “loose lips sink ships!”
18. Don’t let the butterflies get you. Watch your temper and tone. Breathe deeply and count to 10 if you must to regain your composure. If you need a break, the bathroom or a tissue, don’t be afraid to ask for it.
19. Be aware of your facial expressions and body language. Although it will not show up on the transcript, sitting up straight will really help you focus your concentration. Speak calmly but firmly. Try not to frown or make fists. Do not cross your arms in a defensive manner.
20. Don’t chew gum. Dress modestly and conservatively. Be on time.
21. Think first, remain calm, answer honestly only the precise question asked, and then be silent until the next question. Be careful about everything you say. If the case goes to trial and your testimony differs from what you said at the deposition, you may be made to appear to have been untruthful either at the trial or at the deposition and either way the Judge will begin to question your credibility.
22. At a deposition, opposing counsel can ask questions that one would normally think are none of his/her business, but which deal with admissible evidence or can lead to admissible evidence. Do not be surprised if I do not object to questions that seem out of line. If I do object to a question AND instruct you not to answer, then do not answer. Do not, however, refuse to answer a question unless I instruct you to refuse.
23. There are basically only 3 ways to answer a question:
- If you absolutely know the answer to the question with certainty (“What is your date of birth?”) give it straight out;
- If you do not know the information and never did know the answer (“What was the name of the husband of your son’s teacher?”) you can respond “I have no idea” or “I don’t know”.
- If you used to know the information but do not remember now and you can consult something to give an answer (“How many miles from the earth to the moon?”), you can respond “I would need to check before I answer that question”
24. You will have an opportunity to state whether you waive your signature to the deposition or whether you will read it and sign it. If you do not waive signature, you will make an appointment to meet the court reporter at his/her office, read the deposition, make corrections as to form (but not substance) and sign it.
25. Your deposition will assist the other side in determining whether to settle the case or not. This deposition is usually the only opportunity the other lawyer will have to speak with you before trial. You should answer the questions in an honest and straightforward manner so that the other lawyer will be impressed with the potential your honesty will have with the Judge.
26. While someone else is being questioned during the hearing, be mindful that I, as your attorney, will simultaneously be:
- paying attention to each of the opponent’s questions; while
- keeping track of the question’s propriety; while
- keeping alert to the answer given; while
- writing a note as to the exchange; while
- watching the hearing officer’s reaction, or lack thereof; while
- making a judgment whether to object or not, AND
- enduring the inevitable elbow from the whispered – often frantic – plea of the client telling me “that’s a lie!”
Therefore, I will provide you with a pad of paper to write upon if you did not bring your own, because I cannot listen so attentively to three things at once. Because we have most probably discussed the case extensively, there should be no need to write “lie” on the paper. If the witness says, for example, the child’s birthday was 1/15/99, and it was really 1/17/99 and you truly believe that I do not already have that information, then please write it down for me.
THIS INFORMATION IS INTENDED TO BE A BRIEF OVERVIEW OF GIVING TESTIMONY AND IS NOT INTENDED AS LEGAL ADVICE ON YOUR PARTICULAR CIRCUMSTANCES. IT IS ONLY INTENDED TO ASSIST YOU IN UNDERSTANDING THE PROCESS.
IF YOU SHOULD HAVE ANY QUESTIONS, PLEASE DO NOT HESITATE TO CONTACT THE OFFICE TO SCHEDULE AN APPOINTMENT – 330-996-4099.
Guidance from an Experienced Professional
Ohio family lawyer Melissa Graham-Hurd knows the pitfalls of testimony. Don’t go to court without her experienced guidance. Call to make an appointment to meet with someone who has been there many times and can offer professional guidance based on experience.