21 Things to Tell Your Testifying Witness Posted on December 9, 2015 by Julie Brook This material is reproduced from the CEBblog™, 21 Things to Tell Your Testifying Witness, (http://blog.ceb.com/2015/11/16/21-things-to-tell-your-testifying-witness/) copyright 2015 by the Regents of the University of California. Reproduced with permission of Continuing Education of the Bar – California. (For information about CEB publications, telephone toll free 1-800-CEB-3444 or visit our Web site, CEB.com). Before your friendly witness is called to the stand, you should go over some general guidelines with him or her. This is particularly true of inexperienced witnesses, but it can’t hurt to review these admonitions even with someone who’s very experienced in giving trial testimony. You also might want to give them a hard copy to look over just before testifying. Tell the truth. Don’t be afraid of the lawyers. Relax; don’t lose your temper. Speak slowly and clearly (most of us speak faster than we realize). Always be sure of the question before answering; if you’re unsure of the question, ask for a repeat or rephrasing. Under cross-examination, DON’T VOLUNTEER; if you can answer yes or no, do so and STOP. Don’t be afraid to admit that you don’t know an answer or don’t remember a fact. You don’t need to be positive to give an answer; you may testify that you think something is probably true or untrue. Don’t memorize your testimony, i.e., speak in your own words. Don’t kid or joke, and always be courteous to the judge and other counsel. Don’t be reluctant to admit that you’ve reviewed your testimony with counsel; every competent attorney goes over testimony with prospective witnesses. Get a good night’s rest, have a good meal, and don’t drink or take tranquilizers or medication before coming to court unless required to by a doctor. Don’t read, chew gum, sleep, or talk during court proceedings. Don’t wave or talk to the client or the attorney in the courtroom, hallways, or restrooms; doing so may make you appear partial to the client in the jurors’ eyes, causing them to discredit your testimony. Don’t discuss the case in the courtroom, hallways, or bathrooms, because jurors and others may overhear the discussion. Don’t say anything at any time to a juror in or out of the courtroom—this includes verbal and written communications of all types. When seated in court, don’t react to favorable or unfavorable testimony; grimaces and smirks may be noticed by the jury. Don’t pass notes to the attorney while in court. If there’s an objection to a question, wait for a ruling before you answer. If you make a mistake, correct it, even if the questioner has moved on to another question. When you finish your testimony, leave the courtroom—don’t wait for or attempt to talk to the client or the attorney. For much more on preparing witnesses for trial, check out CEB’s California Trial Practice: Civil Procedure During Trial, chap 5. For step-by-step guidance and other useful checklists to help with trial preparation, turn to CEB’s Preparing for Trial (Action Guide).
