subject: Some Advice For Those Called To Testify In Personal Injury And Other Civil Trials [print this page] If you are going to "take the stand" as a witness (whether or not a Party to the case), you should be prepared to do so. This is your best opportunity to present yourself in a good light. It can also be the biggest opportunity for an Attorney to make you look bad in the Jurors' eyes.
In civil Trials, any Party may request the Judge to invoke the Exclusionary Rule. When invoked, the Rule requires witnesses (other than expert witnesses and the Parties themselves) to remain outside of the courtroom prior to the completion of their testimony. I believe the reason for this Rule is to prevent a non-party, non-expert witness from changing his/her testimony based upon what he/she hears during the Trial. By doing so, it keeps pre-trial discovery, such as disclosure of witnesses and the Deposition of that witness more meaningful.
The Bailiff advises the witnesses whether or not they should remain outside the Courtroom until they are called and is responsible for bringing the witnesses into the Courtroom when they are called by a Party. If you are waiting your turn to be called, make sure you are available outside the Courtroom while Court is in session.
Parties are entitled to call witnesses in the order they deem appropriate. Different Attorneys have different approaches on the order they choose to call their witnesses and the order may vary from case to case. Courts may also allow Parties to call their witnesses during the presentation of another Parties case for the convenience of the witnesses. I have seen this done where a Defendant's medical doctor needs to be called during the Plaintiff's case so that the doctor will be able to perform surgery on another patient.
When called to the stand by a Party, you will go to the witness stand where you will remain standing to be sworn in or affirm to tell the truth. Then you will be seated and questioned. Feel free to ask for water or pour some water. You may need it during the questioning. If you are on the stand for a long time and need a break let the Attorneys and/or the Judge know you would like one.
Typically, a witness is examined by the Party calling him who is using that witness to support its case. This is called Direct Examination. Certain Rules apply to Direct Examination such as NRCP 50.115(3)(a) which, generally, prevents a witness to be asked leading questions on direct examination. If done properly, the Attorney presenting the witness asks questions that allow the witness to tell her story in her own words.
During Direct Examination, the Attorney should be like a conductor asking questions allowing the witness to tell her story in an efficient and effective manner. The testimony should not sound rehearsed or a mere parroting of the Party's position as seen through the Attorney's eyes.
I never write down all of my questions or go over any witnesses testimony line by line. I believe that this makes the testimony sound less credible to the Jury and can harm the case. I also believe that if I am reading my questions or looking for the next question I am not listening to the Answers. If I am not paying attention to the witness, the Jury is less likely to do so. Also, I may miss something important in the answer, such as the witness mis-stating his testimony and not take the time to correct right away.
After the witness has testified on direct, he can be cross examined by the other party in the case. This is called cross examination. A major purpose of cross examination is to poke holes in the witnesses testimony by showing bias, prejudice, the lack of competence, the lack of personal knowledge or perception of events or other reasons for the Jurors not to believe the witness.
An Attorney should ask leading questions on cross. The idea is to score points by getting the witness to agree that there are weak points in his testimony. The Attorney should require the witness to Answer Cross examination questions with a "yes" or "no" and, if necessary, ask the Court to instruct the witness to answer the questions appropriately. If the Attorney is doing his job right on cross examination, the
If you are a Party and the Party that called you is on the other side of the case, the Attorney may request the Court to be allowed to examine you as a hostile witness. What this means is that the Attorney will be allowed to ask leading questions and approach you as if she were cross examining you.
Sometimes a question is asked and the witness does not know, or does not recall, the answer to the question. If either is the case, do not be afraid to simply say "I don't know" or "I don't recall" if that is, in fact, the case. I can tell you there are many things I never knew about accidents I was involved in. For instance, I was broadsided in a parking lot by a car I never saw before the accident. If asked about that car's speed, I can only state "I don't know" since I have never had any personal knowledge about the speed. On the other hand, if asked who was the doctor who treated me for that accident more than 20 years ago I would have to answer "I don't recall"since I knew his name at one time, but don't recall it any more.
If you answer "I don't know" or "I don't recall" Parties may be allowed to "refresh your recollection" by having you look at a document. In my case, they may have found a medical record from the doctor who treated way back then. If I were to look at it I might recognize the doctor's name, address, or something else in the document that would make me recall that this was, in fact, the doctor who treated me for that old accident. In that case, I would state that I did recall that this was the doctor and the testimony would go on from there.
We've all seen TV shows and movies showing in Court testimony and objections being made by Attorneys on behalf of their clients. Such Objections include: "leading the witness" (when the witness is being asked questions on direct examination); "calls for hearsay"; "the question has been asked and answered"; and others. Objections are made for various reasons: some technical and some tactical. As a witness, you should merely wait until the Judge rules on the Objection and do as instructed. If you are instructed to Answer the question, but have forgotten it during the time the Attorneys argued about whether or not it should be answered, ask for the question to be repeated.
If you've read my blog posts, you'll know that I believe Juries'; decisions are, at least, influenced by whether or not they like the Party or Parties in the case and, by extension, whether or not they like the Attorneys for those Parties. Attitude can be everything. I understand that as a witness, especially if you are a Party, you don't like being attacked by an Attorney on the witness stand in front of a Judge or Jury. However....how you react to the Attorneys in the Courtroom can influence the outcome of a case. This is true for expert witnesses supporting one side as well as Parties and lay witnesses.
I tell my clients to treat the other Attorney the same way they treat me. If they understand and answer all of my questions then they better do the same when they are being asked questions by any other Attorney in the case. Imagine being on a Jury and seeing a witness (especially a Party) having a flowing testimony without interruption with one Attorney then suddenly not being able to understand questions from the other Attorney or not answering them in a direct manner. As a Juror you would have to wonder what's going on here? What is this guy hiding? Jurors who get that impression will tend not to believe the witness.
I'm not saying that a witness should sit there and take abuse from any Attorney. The other Attorney (especially if it is our Attorney) and/or the Judge should object if the Attorney asking questions is not behaving properly. Also, the Jurors can take offense if an Attorney is being argumentative or nasty when the witness is answering the questions. The Jurors will also understand and sympathize with a witness who is being bullied by an Attorney if they show anger or displeasure after being attacked for no good reason.
I also tell my clients and witnesses I am calling to Answer to the Judge in a Bench Trial or Jurors in a Jury Trial. In other words, pay attention to the Attorney while she is asking questions then turn to the Judge or the Jury to give your answer. The same holds true if the Judge is asking you a question in a Jury Trial. It is becoming more common for the Jurors to be allowed to ask questions of the witnesses if they believe some information is missing. In those cases, the Judge will ask the Jurors if they have any questions after the Attorneys have finished asking their questions. If so, the Judge will be given written questions that he may ask if he, with the input of the Attorneys in the case, feel it is appropriate to do so. Listen to her questions then Answer to the Jury.
In the end, a witness' job on the stand is to answer questions. The Attorneys ask questions, make objections and ask questions on direct, cross, and redirect in order to clarify the meaning of the testimony in the case. At the end of the case, the Parties, through their Attorneys, will lay out how your testimony fits in to their theories of the case. The Jurors will look to how you acted on the stand as well as what you said while on the stand in making their final ruling. Therefore, you should listen to the questions, answer them honestly and to the best of your ability, ask for clarification if you don't understand the question, and tell the Jurors you don't know the answer if you don't have the information to answer it.
