By Attorney Bradley Fuller
Testifying in court or at a deposition can be a deeply stressful experience. Being subjected to cross-examination questions is a particularly unfamiliar and tense circumstance. However, by adhering to the following general guidelines, one can greatly reduce the anxiety associated with providing sworn testimony.
- The first rule, of course, is to simply tell the truth. Your lawyer will instruct you as to whether or not it is advisable to invoke the Fifth Amendment protection against providing testimony that could be used against you in a criminal proceeding. It is never advisable to provide false testimony. Even if your answers are embarrassing or damaging to your case you should never lie while under oath. Perjury is a Class 3 felony in the state of Illinois punishable by two to five years in prison. Moreover, dishonest statements are often easily impeached (shown to be untrue) by opposing counsel which will discredit your entire testimony.
- Listen carefully. Lawyers are very deliberate in the words that they use, and it is of utmost importance that you are perfectly clear about what has been asked of you before you provide an answer. If at any time you are unclear about a question that has been posed to you, ask for clarification. Make sure to listen to the entire question and allow the questioner to finish speaking before you begin your response. There will be a court reporter writing down each and every word that is said, and only one person can be speaking at a time to make a clear record. It is also perceived as rude to interrupt a questioner. Lawyers, Juries, and Judges will be observing your demeanor while on the stand and it is important to behave respectfully.
- Pause for objections. During your testimony either attorney may interrupt you by making an objection. When this happens, you should immediately stop talking until it is made clear to you by the Judge in a trial or by your attorney in a deposition that you may resume speaking. In some cases, like when an objection to a question asked of you has been sustained, you do not need to provide a response.
- Do not become angry and/or argumentative. Testifying is an inherently frustrating exercise, and in some cases, questioners may even be attempting to illicit an emotional response from deponents or witnesses. Remain calm and polite, even if you feel you are being attacked or otherwise treated unfairly. Hostile and erratic witnesses are often perceived to be unlikeable and unreliable.
- Use plain language. While it is sometimes important to use precise phraseology when providing technical testimony, witnesses should generally use commonly spoken and easily understandable language. Responding to questions with legal terminology can sound rehearsed and fraudulent.
- Be concise. It is generally advisable, especially during discovery depositions, that you do not provide more information than is necessary to answer the question posed to you. Listen carefully to the question asked and respond as directly as possible. Never volunteer new evidence that hasn't been specifically requested of you. Many questions will only require a “yes,” “no,” or, “I don't know” answer. Judges will generally not allow witnesses to engage in longwinded narrative testimony. However, if a true and accurate response requires more than a simple “yes” or “no” answer, then you should provide whatever context necessary.
- Refresh your recollection when necessary. If you are asked to provide specific details of which you are unsure, do not guess. Announce the fact that your recollection has been exhausted and you may then be allowed to refer to evidence, reports, or notes to refresh your memory. “I don't recall” is always preferable to conjecture. Never speculate about facts of which you have no actual knowledge.
- Project. Speak loudly and precisely so that you can be heard with clarity throughout the room. Questions and answers are recorded in written form, so head nods, hand gestures, and facial expressions are not adequate responses.
- Demand respect. Immediately tell the Judge or questioner if you feel you are being badgered or otherwise treated unfairly. Conversely, you should show due respect and graciousness to all other participants in the proceedings.
While providing testimony can indeed be anxiety provoking, one can avoid many common mistakes by simply abiding by the above guidelines.
If you have any questions about this list, or require legal counsel for legal testimony (or any legal matter), call CTM Legal Group right away at 312-818-6700.