Copyright held by The John Cooke Fraud Report. Reprint rights are granted with attribution to The John Cooke Fraud Report with a link to this website.
By Bill Kizorek and Scott Finger
You, the witness, are the centerpiece. All are gathered to hear your story so that facts of the case are known before the actual trial. You are expected to tell what you know of the facts, to the best of yourknowledge, as you remember them on the particular day of the deposition
DOCUMENTS, NOTES: You may have received a subpoena to bring certain documents. Bring the subpoena along with the documents. Review those documents prior to the deposition to refresh your memory. Remember, anything you refer to during the deposition may be taken out of your hands by the plaintiff’s attorney and either examined or entered as an official court exhibit. Also, if you read from anotebook, the entire notebook may be taken from you and perused by the opposing attorney (even if only one page refers to the case at hand).
MEMORIZING: Don’t! If you need facts or statements, bring them in. If you try to memorize too many things, you may become confused or give the wrong information.
BEFOREHAND: Before a deposition, it is permissible, and often advisable, to meet with your attorney and discuss the matter in advance. It is also acceptable practice to admit to these meetings when askedabout them by the plaintiff’s attorney.
TESTIFYING, either at a deposition or at an actual trial, have a lot in common. Let’s get right into the procedures. It begins with your being sworn in as a witness. When you are asked by the court reporter if you do “solemnly swear to tell the truth, the whole truth,” etc., answer loud and clearly, “I do.” By the way, note the word “solemnly.” Keep it in mind. Depositions are serious legal meetings. Financial fortunes, even people’s livelihoods, are at stake. This is not the time to joke around. But don’t be so constrained that you feel uncomfortable. Relax; act natural.
THE INTERROGATION: It may sound less intimidating to say “questioning,” but it is really more than a tea party with pleasant questions and answers. Fur may fly, especially if the plaintiff’s attorney feels you are hedging, slanting your story to benefit the defense, forgetting too much, selectively remembering, or not telling the full truth.
You might sail through the deposition so smoothly that you will wonder what all the fuss and bother was about. Then again, it might be like trying to sail through a storm, getting hit by verbal lightning bolts and trying to avoid running up onto a reef. The best course is to prepare yourself to be thoroughly examined and to be mentally strong enough to pull through. Knowing in advance how to field tough or confusingquestions will be 90 percent of the battle. There is no telling what specific questions will be asked, or if a simple question might be asked in a complex or confusing way. Remember that yourquestioner is looking not only for the truth, but for any way to promote the case on behalf of the client. Here, then, are some time-tested hints on how to testify, both in a deposition and in a courtroom. A thorough knowledge of this advice will enhance your value as a witness who is knowledgeable, honest and able to serve the cause of truth and justice.
1. LISTEN CAREFULLY.
a. Pause and think before answering.
b. Be sure you understand the question completely.
c. Don’t answer questions you don’t understand.
d. If a question is vague or confusing, ask
the examiner to restate or clarify it.
2. KEEP YOUR ANSWERS SIMPLE.
a. Answer yes or no whenever possible.
b. Don’t elaborate except for clarification.
c. Don’t volunteer information.
3. GIVE DEFINITIVE ANSWERS.
a. Don’t exaggerate.
b. Keep answers short and be sure they are
well thought out.
4. KEEP COOL.
a. Don’t be a wise guy; don’t be sarcastic or
combative.
b. Don’t be rattled by the questioning procedure.
c. Don’t be intimidated.
5. ALWAYS BE TRUTHFUL.
a. It’s OK to say “I don’t know.”
b. It’s OK to say “That’s all I remember.”
c. It’s OK to say “To the best of my knowledge.”
6. WATCH FOR WARNING SIGNS THAT YOU ARE GETTING WORN DOWN.
a. Fatigue, anger, short temper, impatience.
b. Request a short break if necessary.
c. Avoid rushing testimony to get it over with.
7. DON’T LET THE OPPOSING ATTORNEY PUT WORDS IN YOUR MOUTH.
a. Be alert for comparisons or analogies.
b. Be alert for trick questions.
c. Be alert for different wording/same question.
d. If you feel the attorney is not allowing you
to answer correctly, make a statement to
that effect for the record.
IN THE COURTROOM: In many instances, testifying in court can be similar to testifying during a deposition. Many of the principles are the same, especially your demeanor and presence of mind while being questioned on the stand. But there are more people present: the judge, sometimes a jury, the courtroom staff, even an audience. Consequently, there may be more pressure and drama. There are differences to be aware of. While in the courtroom, the way you appear will be more of a factor than during the deposition. The way you present yourself will also help (or hinder) your acceptance as a believable witness. Here are some pointers:
1. SPEAK LOUD/CLEAR SO ALL CAN HEAR.
a. Look mostly at the jury when answering.
b. Keep your hands away from your face.
c. Keep your head high, hands on lap.
2. WATCH YOUR ATTITUDE.
a. Don’t be sarcastic or temperamental.
b. Don’t joke around.
c. Be polite.
3. ADMIT MISTAKES.
4. YOU DON’T HAVE TO ANSWER WITH ONLY “YES” OR “NO.”
a. Just say “I cannot answer with only yes or no.”
5. ANSWER QUESTIONS FROM EACH ATTORNEY IN THE SAME MANNER.
a. Don’t answer the defense quickly and
the plaintiff slowly.
b. Be courteous to both sides.
6. USE UNDERSTANDABLE LANGUAGE.
a. Keep answers simple.
b. Don’t use words the jury may not understand.
7. BE CONFIDENT
a. Give concise answers.
b. Be natural and self-assured.
c. Don’t be apologetic.
d. Leave the stand smiling and looking relaxed.
8. REVIEW ANY RECORDS BEFORE TRIAL.
a. Include own earlier statements in review.
9. DON’T BE INTIMIDATED BY AGGRESSIVE QUESTIONING.
TRICK QUESTIONS SECTION: The plaintiff’s attorney has been hired to protect the interests of his client. To that end, the attorney will use any number of techniques to elicit a response from you that will be favorable to his client’s case. You may have exact knowledge of the facts, but two different attorneys may have you express those facts in ways that sound totally different. Be prepared for questions designed to elicit answers that convey something other than what you want to say.
It may be unfair to categorize these interrogative techniques as trick questions, but it is obvious that the phrase has developed over time as a result of countless witnesses who felt that they had been tricked into saying something they didn’t mean. So let’s call them trick questions and take a look at some of the angles.
The Question: “Is this true? Answer yes or no!”
Response: “I cannot answer with a simple yes or no” or “To
answer only yes or no would be misleading.”
The Question: “Wouldn’t you agree that…?”
Response: Watch out! The plaintiff’s attorney may be setting you up to agree to something that will prove his point but will not relate to the testimony that you have given. If the question seems faulty or is difficult to understand, have him repeat it. If it is still not in a form you can answer, say, “I don’t understand the question.”
The Question: “Have you spoken to the defense attorney about this matter before you testified? If so, what did he tell you to say?”
Response: “Yes. He asked me about the facts and told me to tell the truth in all matters.” (There are a wide variety of answers you can give, but don’t be afraid to admit to having discussed the case prior to your testimony.)
The Question: “How much are you being paid to testify for the defense?”
Response: Pause for a moment to give defense an opportunity to object. If no objection, go ahead and answer. If you are simply on the payroll of your company and are testifying, you may answer that the company is paying your regular salary. If you are being paid a fee as a professional expert witness, you may mention the amount you are charging, or state your usual hourly rates.
The Question: “Have you ever lied?”
Response: “Yes, but never under oath.”
The Question: “Would you say that what you have told me is the
same as…?”
Response: Alert! Here is the putting-words-in-your-mouth scenario to watch out for. Don’t get suckered into agreeing to analogies or comparisons that may take your observations and twist them to mean something they don’t. Don’t be afraid to challenge the comparison; but always do so politely.
The Question: “Are you telling me…?”
Response: Beware! Watch the rewording to make certain that the words are not being twisted to change the meaning to serve the interests of the plaintiff. Be prepared to say, “I’m not telling you that.” Then you may repeat your own statement the way it was meant to be expressed. The plaintiff’s attorney may simply want you to change your answer to one more acceptable to the plaintiff’s position.
In the end, the mandate is that the truth be presented. You, as the person providing testimony, should be prepared enough so that the truth of your testimony is not negatively manipulated by a skillful opposing attorney. This preparation, when combined with incontrovertible factual evidence, will guarantee that justice prevails.
Bill Kizorek has written many books to assist the defense industry. He has lectured on five continents and traveled to over 100 countries. He is the president of InPhoto Surveillance, Naperville, Illinois.
Scott Finger is the National Account Manager of InPhoto Surveillance.
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