Legalese — Tips for Testifying

swearing in

One of the scariest things in the world is to sit on a witness stand and testify.  I spend a ridiculous portion of my life in courtrooms, and even so, the few times I have had to take the stand, I have been nervous. This is despite the fact that I knew I would tell the truth and didn’t have anything to hide, and despite the fact that I’ve never had anything personal on the line in a Courtroom. I’ve only ever been a witness, and usually to dry, legal stuff.

I have, however, questioned probably thousands of witnesses in a Courtroom, and, based on watching them and judges’ and juries’ reactions, there are a few things you should know before testifying. Although I am writing these tips to be courtroom specific, they probably apply to any form of public speaking and/or question and answer type dialogue.

1.         “I don’t know” is a fine answer. If someone asks you a question, and you don’t know the answer, saying, “I don’t know” is not only OK, but a good idea. If you speculate, you have a good chance of being wrong, and there you are, under oath, saying something untrue. If you think you know but aren’t sure, say that. “I’m not sure, but I want to say the guy had brown hair.”

2.         If you are being called to testify, it is because you know something that no one else does. You witnessed something happening, you heard something, you saw/dealt with the aftermath, or you played a part in what went on. No one else is as familiar with what you have to say. A mistake that a lot of us make is using too many pronouns. I hear sentences like this in the courtroom often: “He came over to her house, and then she left and we went to the store.” This could mean “Bob came over to Susie’s house, and then Susie left and Bob and I went to the store.” It could also mean, “Bob came over to Susie’s house, and then Susie’s Mom left, and then Susie’s sister Marie and I went to the store.” On the stand you want to be absolutely clear. Avoid pronouns unless absolutely necessary.  (Except for “I” – unless you are royal, no one needs you to refer to yourself in the third person.)

3.         More often than not, what is happening in a courtroom is being recorded. This will be done in several forms: it could be someone taking notes; a court reporter typing in what you say; an audio recording; a video recording; or the court reporter repeating everything you say into a microphone.  “Uh-huh” and “Uh-uh” sound and look an awful lot alike, but have completely opposite meanings. “Yeah” and “nah” do, too.  Shakes of the head and hand gestures have no sound whatsoever in a black and white transcript, which is what it will all be boiled down to if there is an appeal. (This explains why you will occasionally hear a lawyer say something stilted and formal like, “let the record reflect that the witness is shaking his head in a negative manner.” That comes out on a transcript.) All of this chance for misunderstanding and waste of time on the record can be saved with a simple “Yes” or “No.” Better yet, “Yes, ma’am” or “No, sir.” It never hurts to be overly formal.

4.         Although as a general rule, the witness is not allowed to question the lawyer asking questions, there are some questions that are OK.  Such as, “I’m sorry, I didn’t understand the question, would you please repeat it (or phrase it in a different way)?” It is really important that you answer the question that the lawyer is asking, not the question you think the lawyer is asking. Ask for clarification if you need it. “Are you talking about before or after the car accident?” “Do you mean Mr. Johnson, Sr., or Mr. Johnson, Jr.?”

5.         Be sure to look credible. I’ve said it before, and I’ll say it again – as much as we are told not to judge books by their covers, we are all guilty of doing so, especially when the book has chosen the cover it displays. If you dress neatly and modestly, you will look credible. If you dress sloppily or revealingly, you will not look credible. Only wear your uniform if it is related to your testimony. I’d believe a mechanic in a mechanic’s uniform who had grease under his fingernails testifying about his mechanical opinion a whole lot quicker than I’d believe a mechanic in a three piece suit and sporting a manicure. That said, if the very same mechanic were going to court to get custody of his own children, I’d expect him to come to court wearing a shirt with a collar and scrubbed up as best as possible.

6.         Generally speaking, one lawyer in the room will be making it easy for you, and the other one will be trying to make it look like you don’t know what you are talking about.  This is not personal. They are each paid to take a side, and looking like they believe everything their client tells them is part of the skill set they are hired for. DO NOT LET ANYONE GET YOU MAD. When you get mad, you get flustered, which means that adrenaline takes over your brain instead of logic.  It makes your testimony look emotional and personal rather than rational. Ask the Court for a break if you need to calm down. I have yet to see a Judge question the motives of a witness who asks to use the rest room.

7.         Oh, and I would hope this last one goes without saying:  tell the truth. It may or may not set you free, but telling the truth under oath isn’t a felony. Lying is.

This article was written by a lawyer, but should not be considered legal advice in any way, shape, or form.  It is written for general (and generally vague) informational purposes only.  In order to properly evaluate your case, a lawyer must examine all the facts and circumstances that are particular and personal to your situation.  I have not done that here.


About Lori Duff 74 Articles
Lori is the author of the bestselling collection of humor essays, "Mismatched Shoes and Upside Down Pizza" currently available exclusively on Amazon. In order to finance her writing habit, she is a practicing lawyer with Jones & Duff, LLC. She is married to Mike Duff, who is a retired DeKalb County Public Safety Officer, and has two amazing children who make cameo embarrassing appearances in her blog posts and who attend Walton County Public Schools. Her legal column, "Legalese", is meant to de-mystify and humanize the Court system. When asked about her writing, Lori says, "Life is too short not to laugh at every available opportunity. My goal is to make myself laugh -- and hopefully you will laugh along with me."
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