The Three Key Rules For Testifying
Whether at deposition or trial, witnesses should remember three rules when testifying:
Rule #1 – Listen to the question.
Rule #2 – Listen to the question.
Rule #3 – (Yep, you guessed it) Listen to the question.
One of the more common threads I’ve seen with my adversaries’ witnesses, is that many will often begin responding to a question they think was being asked of them – instead of answering the question that was actually posed. It happens on both direct and cross-examination. As a result, the witnesses’ testimony often becomes disjointed and/or offers up new areas of inquiry. Either way, the witnesses’ credibility often takes a hit.
To avoid this situation with my witnesses, I hammer home Rules #1, #2 and #3 during trial prep. Then, I follow-up with the following instructions:
Make sure you listen to the entire question and understand what you are being asked before responding.
If you don’t understand a question because you don’t know what some of the lawyer’s words mean, tell the lawyer you don’t know what the word or phrase means and ask him/her to explain.
If you don’t understand what you’re being asked because the question itself is confusing (lawyers do this a lot), tell the lawyer you don’t understand and ask him to clarify the question.
Bottom line, never answer a question if you’re not absolutely certain what you’re being asked!
Another common thread I see with adversaries’ witnesses, is a tendency to answer questions about which they have no personal knowledge. When I spot such a witness, my antennae go up, because it means the witness was not properly prepared — in which case I “use” the witnesses’ willingness to answer anything to either buttress my case or destroy the witnesses’ credibility.
To avoid such pitfalls with my clients’ witnesses, I reinforce the point during trial prep that if the witness lacks personal knowledge concerning any particular question, the answer is a self-confident “I don’t know”. This instruction often comes as somewhat of a revelation to witnesses who sometimes think they are obliged to give an answer to any question asked of them. So, I follow-up by saying “‘I don’t know’ will not hurt us, unless that’s your answer when I ask for your name!”
While these are but a handful of the instructions I give during trial prep, Rule #1, #2 and #3, alone, can help avert the type of “surprise” testimony that can submarine an otherwise strong case.
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