What To Expect When You Testify
Jan L. Warner
This material was developed with experienced family lawyers to give you basic information that is not intended either as a substitute for advice from an attorney or as an attempt to answer all questions about situations you may encounter, but to give you ideas about how to begin to solve custodial problems. Because all situations are different, because the law of each state varies, and because you may have questions that are not covered in this material, we urge you not to rely on this material as legal advice and not to make decisions without the advice of a competent family lawyer whom you should consult for appropriate advice about your specific legal problems. This material is provided as is, without warranty of any kind, either expressed or implied.
Copyright 1996-2002, FlyingSolo®, Life Management®, Post Office Box 11704, Columbia, South Carolina 29211. All rights reserved.
WHAT TO EXPECT WHEN YOU ARE TESTIFYING
When you go to court, or when your deposition is taken...you will be required to testify under oath. This means, as your lawyer will explain to you, that you will be sworn in by a judge or clerk and then will be required to answer the questions put to you. Make sure you and your lawyer review the likely questions to be asked; but remember, when the questions begin coming in, you will not be able to ask your lawyer...or anyone else...for help. So in addition to knowing your material and being honest -- because if you get caught in a dishonest statement your credibility will be questioned and your case could go down the drain -- you need to know a few rules that may assist you:
GUIDELINES FOR TESTIFYING
1. CONCENTRATE-- You must concentrate on the event. To let your mind roam can mean disaster.
2. LISTEN -- Listen hard to everything that is going on. When anyone begins to talk, you stop and listen. When anyone interrupts you, you stop and listen. When your lawyer makes an objection or statement, listen because your lawyer may be trying to tell you something you need to know. If your lawyer tells you not to answer, don't answer.
Listen with your ears, eyes, and your senses all at once. If you listen without looking and feeling the event, you may miss half of what is being said.
Listen to the exclusion of wondering what will be asked next. The next question will come soon enough.
Listen and remain attentive. Don't slouch in your chair. Sit up straight, preferably on the front part of the chair.
Before you answer, listen to the entire question in full. Do not anticipate what the question may be.
3. HEAR -- While you listen, you must also hear what the question is. If you don't hear the question, ask that it be repeated until you can hear it clearly.
4. UNDERSTAND -- Before you answer, understand the question...all of the question. Never answer a question you don't understand in total.
Many times, questions will be prefaced by assumptions...that may be correct or not correct. Note the assumption and understand it before you answer.
If you don't understand, say so. There is no sin in admitting you don't understand...especially when you are on someone else's turf. You may want the question rephrased, so ask for that.
5. ANSWER THE QUESTION -- Answer directly. Don't volunteer anything that is not asked. If you don't know or don't remember, say "I don't know," "I don't recall," or "I don't remember".
Ask your lawyer, but you might add "If I find out or later recall, I will notify my lawyer." Tell the truth...always. If the question has more than one part -- including the assumptions -- answer each part of each question.
If possible, answer "yes" or "no". But remember, you have a right to explain...but don't volunteer anything that is not asked.
6. STICK TO THE ANSWER -- Sometimes, the same question is asked in different ways. Be sure to answer the same question the same way.
A good cross-examiner wants to get you to change your answer so that the inconsistency can be used against you later and to question your credibility. Don't fall for it.
7. OTHER HELPFUL HINTS -- Don't be lulled into engaging into friendly conversation with the other lawyer. He or she ain't there to be your friend.
Don't answer a question until you understand it fully.
Answer only the specific question asked. After you have answered briefly and succinctly, stop. Don't elaborate or volunteer information. You are entitled to explain and can say "Yes, but..." or "No, but...".
Don't guess at an answer. If you don't know or don't remember, say so.
Don't look at your lawyer for answers. You should look through, not at, opposing counsel. Don't get into a staring match with your adversary.
Remember that if there is a problem with one or more of your answers, your lawyer will have an opportunity to clear it up.
Answer each question verbally. Don't nod or shake your head. Don't mumble or use "Uh huh" which may be mistaken for "Uh uh" or "Huh huh".
Be brief, responsive, and truthful.
Don't raise your voice or lose your temper or become angry.
If you bring notes into the deposition or hearing and refer to them, those notes become fair game. So never bring any files or other documents with you unless you won't mind the other side looking at all of them.
A deposition can be used to impeach your credibility later. So don't say that you may want to change an answer later.
If you are asked if a witness will be at trial or who your witnesses will be, you can say you're not sure if your aren't sure. You can tell the adversary that as soon as you know, you will make sure that your lawyer provides that information.
Don't use such words as "absolutely", "never", "always", or "positively" because these words can get you in trouble later.
Dress neatly and make a good appearance.
Be ready to admit that you are not perfect. Everyone has faults.
If your lawyer objects, listen carefully and stop talking.
THE FOREGOING IS INTENDED ONLY AS A PRACTICAL INFORMATION GUIDE AND SHOULD NOT BE CONSTRUED AS LEGAL ADVICE. BECAUSE EACH SITUATION IS DIFFERENT AND BECAUSE STATE LAWS VARY, YOU SHOULD NOT PROCEED WITHOUT THE ASSISTANCE OF A COMPETENT MATRIMONIAL ATTORNEY.
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