Kentucky and Indiana Mechanic's Liens

Article 9 of Uniform Commercial Code

“Tips, Tricks & Traps”
The Legal Collection Process

Witness Preparation

SECTION C

GENERAL ASPECTS OF TESTIMONY

Shon Leverett

The preparation of a witness for both deposition and trial testimony, breaks down into a simple set of instructions that accompany a vast set of circumstances. Although several of these instructions could be elaborated upon extensively, the following is a simple, yet concise, road-map of which the witness needs to be aware.

C.01 ANSWER TRUTHFULLY

The Code of Professional Responsibility of the American Bar Association establishes in Ethical Consideration 7-26 that “the law and disciplinary rules prohibit the use of fraudulent, false, or perjured testimony or evidence...” Ethical Consideration 7-28 states that “witnesses should always testify truthfully and should be free from any financial inducements that might tempt them to do otherwise...”

C.02 MAINTAIN NEUTRALITY

In legal concepts, neutrality means not taking the position in favor of one of the parties involved against the other. It is expected that a witness participating in a trial would be a person who is not committed to any of the parties but instead is ready to tell with all fairness what he or she knows about the facts or has perceived about certain facts. Feelings such as sympathy, hate, partiality, preference, or discrimination must not be presented when recounting the events of testimony. These types of sentiments destroy the assumption of neutrality and impartiality on the part of witnesses, therefore sometimes tainting their testimony in the trier of facts mind.

C.03 ONLY ANSWER THE QUESTION ASKED

It is very important the witness understand he or she is to only answer the question which is asked. Often times, an attorney has a “game plan” that he is attempting to carry out where he builds his case bit by bit, at each juncture laying certain elements he wants the trier of fact to be persuaded upon. Simply stated, do not explain or elaborate unless the lawyer asks for it. If a witness is to explain or elaborate when he has not be requested to do so, certain important elements of the testimony may be glossed over or lost in a witness’ long dissertation. To back-track and pick those elements up will not have the same effect upon the trier of fact as if set forth in the way the lawyer anticipates it to be.

Further, the witness should only answer the question asked due to consequences which could arise when an opposing lawyer can make an important issue out of an innocent word or explanation needlessly mentioned by the witness. The witness must remember that once his or her mouth is opened and words are uttered they cannot be retracted. Not only has the trier of fact already heard those words, but their meaning has been taken down in a recorded format.

Answer directly and simply, with a “yes” or “no” if possible, only the question asked; then-stop, do not volunteer additional information that is not requested. Otherwise, your question may become legally objectionable under the technical rules of evidence and may also cause you to appear biased. If, however, an explanation is required, say so. Sometimes an attorney will try to limit you to a “yes” or “no” answer. If that happens, simply say you cannot answer the question “yes” or “no.” Usually the Judge will let you explain, but in any event the jury will get the point.

C.04 GIVE ONLY BEST PRESENT RECOLLECTION

The witness must keep in mind that the Judge or jury only wants to hear what the witness saw, heard, observed and personally perceived and not what the witness believes, assumes or thinks happened. Therefore, the witness should not utter expressions such as “I think I saw” or “I suppose she said”–these are not good pieces of evidence. As has often been mentioned in witness preparation materials, “memory not imagination is the key.” See Aron 11-6.

C.05 TESTIFY FROM PERSONAL KNOWLEDGE

Rule 602 of the Federal Rules of Evidence states that “a witness may not testify unless evidence is sufficient to support a find that he has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness himself.”

A witnesses testimony should only be about facts the witness personally perceived by his or her own senses, including sight, sound and observation. If a witness has not personally perceived such things, evidentiary rules may prohibit the introduction of such testimony. Further, it goes without saying the more personal observations which can be testified to inherently create credibility in the witness’ testimony. Conversely, the more removed a witness’ testimony from first-hand observations, the less credibility may be established.

If your answer was wrong or unclear, correct it immediately. It is better to correct a mistake yourself than to have the opposing attorney discover an error in your testimony. If you realize you have answered incorrectly, say “May I correct something I said earlier?” or “I realize now that something I said earlier should be corrected.”

C.06 USE EVERYDAY LANGUAGE

Most people are more comfortable and credible when describing events in their own everyday language. If a witness is attempting to use words and phrases which are beyond his knowledge, the witness may seem false, coached or rehearsed-thereby potentially destroying his credibility. It is imperative the witness take the stand and speak with such comfort that the facts and observations which the witness is testifying to will come across as being credible and sincere. If a juror does not understand witness’ answer due to the witness attempt at “spicing” his language, the juror may not understand or remember the testimony. If a juror cannot remember what witness said, it cannot be taken into proper consideration, and will certainly affect the verdict. Always remember that as a witness you will be most effective if you can just “be yourself.”

C.07 TESTIFY SPONTANEOUSLY

Testimony must be an understandable and believable reconstruction of a past event. To achieve such believability, a jury must be persuaded the witness is giving an honest account of the events he remembers. Two rules assist the witness in achieving this effect: (1) spontaneity and (2) avoidance of memorization.

Spontaneity refers to “how” a witness answers not as to “what” he says. During the preparation process, a witness is instructed how to answer questions and how to tell the finder of fact what the witness knows about the case. The lawyer does not advise the witness as to what to say or what words to use.

Avoid memorization. Memorized testimony is like a wall between the witness and the jury. Besides losing the desired spontaneity as described above, “memorized testimony causes suspicion. It gives the impression the lawyer or party provided the witness with a text and said “this is what you must tell the jury, word for word.” See Aron 11-9. Those that have studied behavioral patterns of witnesses, state that a witness reciting from memory will displace certain symptoms. (1) No permanent eye contact with the lawyer or the jury; Generally the witnesses eyes will give the impression they are looking at a fixed point in space; (2) Absence of flexibility in the wording and gestures; (3) An artificiality that makes the words sound mechanical and void of genuineness; (4) A tendency, if one word is forgotten, to also forget the succeeding words. Aron at 11-9

C.08 PAUSE AND THINK BEFORE ANSWERING

A witness who does not listen to a lawyer or Judge’s questions is a disaster and a danger to the entire case. A witness should always take time before answering. Not only does it give the witness time to consider the proper answer, but it also gives the natural effect of having a jury listening for the answer. It is possible, if a witness is quick to answer, he or she may not have thoroughly understood the question and therefore provided an answer not directly in response to the question–a violation of the earlier Section 3.03. By briefly pausing before verbally answering, the witness can replay the question in his or her mind to make sure the question is adequately understood. If the witness does not believe he fully understands the question, the attorney can then be requested to rephrase or reask the question before answering.

Do not exaggerate. Be wary of overbroad generalizations that you may have to retract. Be particularly careful in responding to a question that begins, “wouldn’t you agree that..?” Note also that statements like “nothing else happened” are dangerous; After more thought or another question, you may remember something else. Say instead, “that’s all I recall,” or “that’s all I remember happening.”

C.09 ADMIT LACK OF KNOWLEDGE

If the witness does not know the answer to a question the witness should admit they do not know the answer or they do not recall. If a witness attempts to embellish an answer to a question to which they really do not know the answer, the witness may be setting himself up for a disastrous cross-examination. Since the witness does not have first-hand knowledge and is merely guessing at an answer, other evidence may exist which could ultimately shake the credibility of the witness and therefore even throw doubt on other testimony which may have been grounded in the witness’ solid perceptions. The risk of admitting “I do not know” is much less than guessing and having that guess later shake the foundation of a witness’ whole testimony.

C.10 CLARIFY ANY UNCLEAR QUESTIONS

As a follow-up to admitting a lack of knowledge, the witness must also be prepared to ask an attorney to clarify any unclear questions. If the witness does not understand the question the witness may inappropriately answer or provide testimony which is false or unintentional misleading. The witness should understand there is no obligation to answer until he or she understands the question 100%. If the questioning lawyer cannot find the words to ask in a clearer manner, it is the lawyer’s problem and not the witness. “A mistaken answer can be worse than no answer at all. The witness is called to give testimony about information known, not about what he or she does not understand.” See Aron Page 11-13.

C.11 MISCELLANEOUS

Stop instantly when the Judge interrupts you or when the other attorney objects to what you say. Do not try to sneak in an answer.

Always be polite, even if the attorney is not. Do not be an argumentative or sarcastic witness. Remember, the attorney has a big advantage, “He or she can ask the questions.”

Testifying for a substantial length of time is surprising tiring and may cause fatigue, crossness, nervousness, anger, careless answers, and a willingness to say anything in order to leave the witness stand. If you feel these symptoms, strive to overcome them, or ask the Judge for a five minute break or to allow you to have a glass of water. See Mark A. Dombroff on Direct and Cross Examination, Wiley Law Publications, Copyright 1985.