TESTIFYING CAN BE SCARY — WE CAN HELP
Testifying in your family law case can be scary. We have some hints for parties and witnesses testifying in a non-jury trial. (In Oklahoma, divorce, custody and similar cases are tried without a jury.)
Before You Testify
1. If you are going to testify concerning records become familiar with them. You should be familiar enough with what is in the records and how they are organized that you will be able to work with them easily while on the stand. If you will be called upon to authenticate records you must know your companies procedures for making and keeping them. If you need to find this out, do so well in advance.
2. If you will testify about past events try to refresh your recollection. Return at least once to the place where the event occurred. Close your eyes and try to picture the exact scene. Note the exact location of physical objects and approximate distances; you may be asked these things. If you have given a written statement, ask to see it. Talk to friends or co workers if they may help recall details that you have forgotten, but do not try to develop a common story. Your testimony must be what you recall, not what somebody told you.
On Your Day In Court
1. Dress neatly and conservatively; do not overdress. Your regular business attire is probably about right. Be well groomed.
2. If you have received a subpoena, bring it with you.
3. The attorney who subpoenaed you may wish to speak to you, which is a proper thing to do. He may ask to inspect any records that you have brought. Until the Judge directs, do not release control of the records unless the attorney for the company is present or you have been told to do so by your company.
4. Avoid any undignified behavior such as loud laughter from the moment you enter the courthouse. Smoking and gum chewing are never permitted in the court room, although they may be permitted in other parts of the building.
When You Are On The Stand
1. TELL THE TRUTH: A lie may lose the case. In a lawsuit, as in all other matters, honesty is the best policy. Telling the truth, however, means more than refraining from telling a deliberate falsehood. Telling the truth requires that a witness testify accurately about what he knows. If you tell the truth and tell it accurately, nobody can cross you up. When you are sworn in, say “I do” clearly so that all can hear. Try not to be nervous, as there is no reason to be.
2. DON’T GUESS: If you don’t know (or don’t remember) say you don’t know (or don’t remember). You are not permitted to testify to what someone told you, only what you know. Your conclusions are not permitted, either, unless you have been first qualified as an “expert witness.”
3. UNDERSTAND THE QUESTION BEFORE YOU ATTEMPT TO GIVE AN ANSWER: You can’t possibly give a truthful and accurate answer unless you understand the question. If you don’t understand, ask the lawyer to repeat it. He will probably ask the Court Reporter to read it back. Keep a sharp lookout for questions with a double meaning and questions which assume you have testified to a fact when you have not done so.
4. TAKE YOUR TIME: Give the question such thought as it requires to understand it and formulate your answer and then give the answer. Do not give a snap answer without thinking, but bear in mind that it will look bad if you take so much time to answer each question that the judge will think you are making up an answer.
5. ANSWER THE QUESTION THAT IS ASKED AND THEN STOP: Don’t volunteer information not called for by the question you are asked. answer with a “yes” or a “no” if possible, only the question that was asked; then – STOP! If an explanation is necessary, say so. sometimes a lawyer will try to limit you to “yes” or “no.” Often the judge will let you answer.
6. TALK LOUD ENOUGH SO THAT EVERYBODY CAN HEAR YOU: Don’t chew gum and keep your hands away from your mouth. You can’t speak distinctly while chewing gum or with your hand over your mouth. Look at the Judge while you are testifying. Speak frankly and openly as you would to a friend or a neighbor.
7. GIVE AN AUDIBLE ANSWER SO THAT THE COURT REPORTER CAN GET IT: Don’t just nod your head yes or no.
8. DON’T LOOK AT THE LAWYER FOR HELP WHEN YOU ARE ON THE STAND: You are on your own. You won’t get any help from the Judge either. If you look at the lawyer for your side when a question is asked on cross-examination, or for his approval after answering a question, the judge is bound to notice it and it will create a bad impression.
9. BEWARE OF QUESTIONS INVOLVING DISTANCES AND TIME: If you make an estimate, make sure that everyone understands that you are estimating. Think clearly about speeds, distances and intervals of time. Remember that time can easily be computed from distance and speed, and that speed can just as easily be computed from time and distance. Be sure your estimates are reasonable.
10. KNOW YOUR NAME, WHERE YOU LIVE, HOW OLD YOU ARE, AND WHEN YOU WERE MARRIED, ETC.
11. DON’T FENCE OR ARGUE WITH THE LAWYER ON THE OTHER SIDE: He has a right to question you, and if you give him some smart talk or give evasive answers, the Judge may reprimand you. Don’t answer a question with a question unless the question you are asked is not clear.
12. DON’T LOSE YOUR TEMPER NO MATTER HOW HARD YOU ARE PRESSED: Lose your temper and you may lose the case. If you lose your temper, you have played right into the hands of the other side.
13. BE COURTEOUS: Being courteous is one of the best ways to make a good impression on the Judge. Be sure to answer “Yes, sir” and “No, sir,” and to address the Judge as “Your Honor.”
14. IF ASKED WHETHER YOU HAVE TALKED TO THE LAWYER ON YOUR SIDE, OR TO AN INVESTIGATOR, ADMIT IT FREELY: We have told you to tell the truth.
15. DON’T BE AFRAID TO LOOK THE JUDGE IN THE EYE AND TELL THE STORY: Judges rely on third party witnesses testimony and want to hear what you have to say.
16. GIVE A POSITIVE ANSWER WHEN YOU CAN: Don’t let the lawyer on the other side catch you by asking you whether you are willing to swear to your version on what you know by reason of seeing or hearing. If you were there and know what happened, or didn’t happen, don’t be afraid to “swear” to it. You were “sworn” to tell the truth when you took the stand. Avoid such phrases as “I think,” “I believe,” “in my opinion,” and “probably.”
17. DO NOT EXAGGERATE. Be wary of overbroad generalizations that you may have to retract. Be particularly careful in answering a question that begins, “Would you agree that …?” Note that statements like “nothing else happened” are dangerous. After more thought you may think of something else. It is better to say, “that is all I can remember happening right now.”
18. If your answer was wrong or unclear, correct it immediately. It is better to correct yourself than to have to explain after the opposing attorney discovers the error in your testimony. simply ask, “May I correct something I said earlier?” as soon as you realize the mistake.