Even though most plaintiffs will never go to trial, the thought of having to testify in court can be a source of great anxiety. Even if you’ve given a deposition in your case, you will find testifying at a trial to be whole new experience. Aside from the additional pressure of being in a courtroom, the purpose and the logistics of trial testimony are completely different. Your deposition was a broad inquiry conducted by opposing counsel, designed to inform him about your case. Your trial testimony, on the on the other hand, is a focused effort by your own lawyer (subject to opposing counsel’s cross examination) to present your case to the jury in the most favorable light possible. This changes not only the way you prepare, but also the importance of how you present yourself.
How to Testify at Trial — Direct Examination
Your lawyer will get the first chance to question you at trial. This is called direct examination. During direct examination, your lawyer is not allowed to ask you “leading questions” (questions which suggest the answer), so it is important that you know the questions your lawyer will ask and the type of answer he is expecting before you take the stand.
Different lawyers have different ways of preparing witnesses for trial. For me, the most straightforward way is simply to provide my witnesses with a “script” which lists the questions I will ask and the answers I am expecting. Before you get nervous expecting that you’ll have to memorize “lines” for trial, know that the purpose of such a script is not memorization. Rather, it serves several other purposes:
- It lets the witness know exactly what questions will be coming. Otherwise, he may try to shoehorn information into a question where it doesn’t belong, not realizing that this information would be elicited by a later question.
- It lets the witness know what type of answer I’m expecting. So, if the question isn’t entirely clear to the witness, he will still know what information I seek from the answer I supplied. The answers I provided will come from the witness’ prior deposition testimony or from other conversations we’ve had.
- It gives the witness the chance to warn me if the answer he’ll give is substantially different from the one I anticipate. If so, I may change the question or drop it entirely. The last thing either of us wants is a surprise at trial.
So, while the script provides the witness with the exact questions I’ll be asking, the answers are only meant to provide him with the gist of the answers I expect — not the exact answers. Trying to memorize answers is a bad idea. It will just make you more anxious about testifying and will make your testimony seem unnatural, rehearsed and therefore, less credible — and before you ask, you cannot bring a script up to the witness stand with you.
While your own lawyer may have a different way to prepare you, if you like the “script” approach, feel free to suggest it to him.
How to Testify at Trial — Cross Examination
After your direct examination, it is likely that the defense lawyer will question you — this is cross examination. During cross examination, the defense lawyer can and will ask you leading questions. You can usually identify leading questions: they are more like statements you will be asked to “agree or disagree” with, or ask if it is “fair to say” something. For example, “Is it fair to say that you had a substantial back injury years before your injury in this accident?” or “Would you agree that your doctor’s records accurately reflect your conversations with him?”
If at all possible, never agree 100% with the defense lawyer’s leading questions. Rather, qualify your answers with things that help your case. For example, using the above questions, you could answer “While I did have a back injury years ago, the pain from it had completely resolved before the accident with your client” or “I don’t know that I’ve read all of my doctor’s records, but I’d be glad to address any particular statement he attributed to me if you could be more specific.” This is not to say that you will be able to disagree with, or even qualify, all leading questions — but when you can, do so.
While you won’t have the benefit of a script when preparing for your cross-examination, you will have the next best thing — your deposition transcript. It is important to read through this several times before your trial, just so you can be sure to answer consistently with your prior testimony. Again, memorization is not the goal. You just want to be familiar with the nature of your prior answers.
Testifying at trial in a way that is inconsistent with your deposition testimony needs to be avoided at all costs, as it can severely damage your credibility with the jury. Obviously, you should give special attention to any deposition testimony you gave which hurts your case. Your lawyer can help point those answers out, and tell you the best way to address them at trial.
How to Testify at Trial — Demeanor
While you do not want to testify like a robot, you do want to maintain a “level” demeanor when testifying at trial. This is especially true during cross examination. The defense lawyer may try to provoke you to anger. Do not take the bait, no matter how insulting his questioning may be (such as if he implies that you are a liar or a malingerer). You want the jury to see the face of the sympathetic victim, not the angry revenge-seeking hothead. Juries hate bullies, so let the defense lawyer come across as one. If you match his aggression, you may lose the jury’s sympathy.
On a more practical (and theatrical) note, if at all possible turn to look at and speak directly to the jury when giving your answers. It may seem awkward not to look at the person who questioned you when giving your answers, but make the effort. Remember that the jury is your audience, not the lawyers. When making eye contact with the jury, remember to move your eyes from person to person (just go down the row and then back again, pausing briefly at each person). Don’t just focus on the one juror who seems to be paying the most attention. Not only will this risk making that juror uncomfortable, but it also ruins the opportunity to connect with other jurors and force jurors who are “drifting off” to snap back to attention.
How to Testify at Trial — “Taking the Sting”
A common practice at trial is to address the shortcomings of your case during direct examination. This is called “taking the sting.” If you leave the “bad facts” in your case until cross examination, it will appear to the jury that you were not telling them the whole story — that you were being less than honest and that the defense lawyer had to force the information out of you. By addressing the “warts” on your case during direct examination, you rob the defense lawyer of the powerful moment when he brings it up for the first time — you “take the sting” out of the bad testimony by pre-emptively preparing the jury for it.
Obviously, when you “take the sting”, you try to minimize the impact of the bad facts as much as possible. If you have a pre-existing condition, for example, you can address it in a much more favorable light while your own lawyer is controlling the questioning. It’s like giving the jury a vaccine for the virus the defense is about to unleash. Not only do you come across as honest for divulging bad facts on your own, you also control the jury’s first impression of these bad facts. So, during your trial preparation, when your lawyer tells you that he will ask you questions which hurt your case, don’t think he’s crazy. There is a very good reason to employ this strategy.
What Will I Testify About at Trial?
Remember that you are not the only witness in your case, and that in addition to other witnesses there will be substantial documentation submitted as exhibits to support your claim. You won’t be expected to know the details of or the reasoning behind your medical treatment, or how much your medical bills are. Your doctors and their records will address those issues. Your work records will support your wage loss claim. You will testify about those things which cannot be better served by another witness or exhibit.
Expect to testify about how the accident happened (and how certain body parts were hit or twisted during the accident). You will testify about your pain, both from the accident and the medical treatment needed to treat your injuries. You will testify about the things that you used to do that you either can no longer do or that you can now only do with pain.
You will address the emotional pain and frustration caused by your injuries. Loss of a job, inability to play with your children, and inability to do the things in life that brought you joy or gave you self-esteem are the types of things you are best suited to describe to a jury. While you should not exaggerate your physical and emotional injuries, if you are one of those people who “suffer in silence” you will need to overcome this instinct at trial if you want the jury to fairly compensate you. Trial is not the time to put on a brave face. Be honest, even if it is embarrassing or “unmanly” to do so.
How Long Will I Be on The Witness Stand?
Every case is unique, so factors such as:
- whether liability (fault) is contested,
- the extent of your injuries,
- the extent of your recovery, and
- the number of any pre-existing conditions
will affect the length of time you are on the witness stand.
Expect that your trial testimony will be significantly shorter than your deposition. Often, other witnesses, such as your doctors, will be on the stand longer than you due to the level of detail required from their testimony. Many plaintiffs can expect to be on the stand less than one hour.
If your lawyer gives you a script, you can estimate the amount of time it will take to go through your direct examination. If you add about half of that time for cross examination and then half or a third of that for re-direct (your attorney may question you again after the cross), that would be a fair approximation of how long you will be on the stand.
How to Testify at Trial — Final Thoughts
As with many things, the anticipation of testifying at trial is usually much worse than actually doing it. Don’t drive yourself crazy with worry. Remember that your testimony is only part of your case — it may not even be the most important part (often medical expert witness testimony will be the deciding factor between a good and bad outcome). Hopefully, your lawyer will prepare you in such a way that your jitters will be kept to a minimum.