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Rules for Testifying in Court

These are some basic rules about testifying and evidence. Whether you are a current client or are about to become a litigant in your first court case, these rules are universal. We have picked out the most important rules and we expect our clients to know them.

1. Tell the truth
This rule should speak for itself. If you are caught lying on the stand, it is ‘perjury’ and may subject you to criminal punishment. Being caught will also make everything you say after that questionable, essentially gutting your credibility. Further, do not be surprised if your attorney moves for an immediate motion to withdraw from your case; lawyers cannot, should not, and most will not support a client lying.

2. Do not exaggerate your answers
Rarely is an answer appropriate that involves words such as ‘always’ or ‘never’, as there are no absolutes in life. If you say something ‘never’ happens, but it, in fact, has happened then you will be made to look like you are lying, when in fact you were just exaggerating. This will hurt your case. Also, just as with lying, exaggeration puts your credibility in question.

3. Listen carefully to the question asked
Many witnesses are so nervous or uptight about the setting, they fail to adequately listen. In reality, most individuals are poor listeners regardless of the setting. You must make a focused and concerted effort to listen carefully to what you are asked.

4. Repeat the question to yourself
This is a little trick with a lot of power. If you have adequately heard the question (heard, not necessarily understood) then you can repeat it to yourself. It is recommended you repeat it to yourself before you answer. This will ensure that you have actually heard the question. If you cannot repeat it to yourself, then you should ask for it to be repeated.

5. Make sure you understand the question asked
If you do not understand the question, then do not answer it. Courteously inform the questioner that you do not understand the question.

6. Ignore the voice inflection or demeanor of the attorney
Attorneys will often try to get you upset with an accusatory tone or will get angry with witnesses in order to get the witness angry so they slip up. This is merely a method of eliciting the testimony that is good for their client. Do not get caught up in the emotions of the moment, keep a level head and your wits about you.

7. Take your time when answering questions
Trial is your time to speak. Do not feel rushed. You have waited a long time to get here so take your time answering - and be accurate.

8. If you forget the question, ask for it to be repeated
There is, of course, a limit to each of these suggestions. Don’t ask for the question to be repeated just because you want to delay or you want to irritate the attorney asking the question because you will end up irritating the Judge and the consequences could be severe. On the other hand, do not be afraid to ask that the question be repeated if you really must.

9. Answer only the question asked
Stay focused on the question asked. One of the largest dangers we face is witnesses who volunteer more information than they are asked. Just answer the question. If something needs to be clarified, it is your attorneys job to ‘rehabilitate’ you. Do not feel like you have to explain yourself on every question. If the question asks for a yes or no answer, give it a yes or no answer and trust your attorney to come back with a counter-question that will give you your chance to explain, if it makes good sense to do so. Sometimes discretion really *is* the better part of valor and it is just as well *not* to explain the situation; that is your attorney’s job to determine.

10. Do not answer questions with questions
Trial is not the time to get defensive with the other lawyer or your own. Do not try to cover up your mistakes or answers that are unpleasant by asking questions to the person asking you the questions. Just answer honestly. If you have bad facts, get them out in the open right up front, and don’t try to hide them with bickering and evasive answers. If you do this, you will be seen as combative, defensive, and unbelievable.

11. Answer orally and with appropriate volume
This means that answers should be words and not ‘uh-huh’ or nods of the head. Court reporters cannot type such things, the answers may be misunderstood, and your record on appeal may be confused. Also, you want the judge and the court reporter to hear your answer. So do not whisper. Speak up but do not yell.

12. Be confident with your answers
Being vague and timid will only open up suspicion and an aggressive cross examination. Stick to your guns. If you have to think about an answer – think about it. Then answer it.

13. Do not guess
Do not guess the answer that is being asked for and do not assume you know an answer or speculate on what a person ‘might’ have said or ‘could’ have done. You do not know what makes another person tick and therefore it would be pure ‘speculation’ on your part. If you do not know for sure, then do not answer as if you do.

14. Be aware of questions that request “all” or “every”
Please refer to Rule 2 above.

15. Always be courteous to everyone
Your attitude can and will affect your case. If you appear as rude and combative in trial, regardless of whether the facts are on your side, the court may decide that you lack the impulse control or demeanor to raise children as a primary conservator. You could lose custody and be ordered to pay child support. Your behavior could also convince the Court to believe what your spouse has said about you; that you are a controlling potentially abusive person. Do not ever think that it cannot happen to you. This does not mean that you have to be the opposing counsel’s best friend, but it does mean that you must not ever be rude to the opposing party or attorney, especially at the courthouse or in trial. Many clients obsess about their spouse’s attorney and focus all of their anger and hatred toward the attorney. Remember that your spouse’s attorney had nothing to do with wanting to file divorce against you, and had nothing at all to do with the breakdown of your marriage, or your ability to get along with the other parent of your children. Remember too, that your Judge, or that Judge’s reporter, clerk or coordinator could be the man or woman in the elevator with you when you are ranting about the miscarriage of justice just inflicted upon you, and if you don’t think that will get back to the Judge, you are kidding yourself. Now, I am not saying that you do not have the right to be angry or believe that you were mistreated, but I would suggest that there is a time and a place for those feelings and at the Courthouse is neither the time nor the place.

16. Remain calm
Testimony can be stressful and can make following the rules difficult. Try to remain calm. It will help if you take deep breaths while on the witness stand.

Rules adapted from “Rules for Testifying” by Syd Beckman Commentary by Bruce L. Beverly © 2006, 2009