Jeanne M. Hannah, Esq.
Postal address:5922 Deer Trail Drive, Traverse City, Michigan 49684
Tel. 231.223.7864 Fax. 231.223.7868 Cell. 231.369.2140
How to Be an Effective Witness
You may have several opportunities to be a witness in your case, or you may be called as a witness in a friend’s case. Sometimes as a party, you will not actively participate, but you will be present in court. There are several things you should think about and ways in which you should prepare, so that you make a favorable impression in court and are an effective witness in a deposition or trial. Giving appropriate answers to questions on direct examination and cross-examination isn’t something that occurs by luck or happenstance. Presenting your case in a favorable light requires careful review and analysis of the facts and issues in your case. This article is written to help parties and witnesses prepare for testifying at a deposition or trial so they can answer any question asked with confidence and without compromising the case, no matter how questions are asked. Your goal is to answer questions in an honest, intelligent, and candid manner.
Trials and depositions are adversarial proceedings. It’s important to thinks about all elements of communication. Your credibility with the judge hearing a case will be impacted by your voice, your enunciation, your speaking ability, and your body language.
Depositions: What; Why, Where and How to Prepare
A deposition takes place out of court. No judge is present. Nevertheless, it is a court proceeding. Sometimes a deposition may be scheduled at a lawyer's office. The following people will be present: both parties (usually), the lawyer for each party, and a court reporter who will transcribe all of the questions and answers and anything else that is said “on the record.”
You will be put under oath and a lawyer will ask you certain questions that you are compelled to answer. The court recorder takes down every word. The questions and answers are either recorded or transcribed; usually they are then typed up in a deposition transcript.
You will want to pause slightly before answering questions to give your lawyer the opportunity to object if she thinks any question asked is objectionable. If your lawyer objects, your job is to wait patiently while the lawyers hash out the objection. Sometimes your lawyer will object to a question and then may instruct you either to answer the question in spite of the objection or not to answer the question.
There are several reasons why depositions are taken:
1) The opposing lawyer wants a chance to see what kind of a witness you will be and evaluate how your testimony will impact the judge at the trial.
2) The opposing lawyer wants to find out exactly what you personally know about the case.
3) The opposing lawyer wants to eliminate the need to present certain proofs at the trial by getting admission from you about key issues.
4) The opposing lawyer wants to make sure that you can’t change your testimony between the time of deposition and the trial. The lawyer may attempt to get you to commit to a set of facts. Then, if your testimony at the trial is different, the lawyer will use the deposition transcript to impeach your credibility—that is, make you seem to be a person who isn’t being truthful.
Remember that the lawyer representing the opposing party is not your friend, although she may try to engage you in friendly conversation to disarm you. The opposing lawyer’s allegiance is to that party. She is your opposition. Don’t get over-confident. Stay focused. If the lawyer starts to act very nice, and tries to seem fair and aboveboard, be wary.
Your lawyer will probably keep a low profile at your deposition. A deposition is not a trial and your lawyer can’t tell you how to answer questions. But you can get help from your lawyer along the way. You can even ask for a recess if you feel the need to ask your lawyer to help you understand where the line of questioning is going.
The Importance of Your Deposition
Under the Michigan Court Rules and Michigan Rules of Evidence, deposition testimony may be used for several purposes:
• to attack your credibility
• to set up admissions against interest by a party
• to take the place of your testimony at trial if you are unavailable as a witness
How to Prepare for Your Deposition
There are several ways you can prepare for your deposition. You will want to read, study and remember certain key things. To be fully prepared and knowledgeable, parties to a divorce should read, study, and remember certain key information:
1) Read the plaintiff's complaint, the answer to the complaint, the defendant's counterclaim, any interrogatories and answers, and any depositions that have already been taken.
2) Review basic information about the marriage: the date of marriage; key information about the beginning of the marriage, such as how old the parties were, their occupations and what assets and liabilities each brought into the marriage. Also review the role each party played in the marriage and key facts about the children born during the marriage (names, ages, birth dates, and schools). Also note the date of separation and the cause(s) of the breakdown of the marriage. Even though Michigan is a No-Fault divorce state, fault still impacts on the issues of spousal support and property division.
3) Be familiar with each party's income, expenses, assets, and liabilities.
4) Plan to talk with your lawyer before your deposition or trial. She will prepare you for when and where you will testify and talk about the kinds of questions you will be asked on direct and cross-examination.
Common Questions Asked at a Deposition or Trial
Most deposition begin by gathering background information about you, including
• Present and past addresses;
• Marital status;
• Educational background and academic achievements;
• Work and professional experience;
• Whether you have ever been convicted of a felony or crime involving theft or dishonesty;
• Whether you reviewed documents or materials reviewed before the deposition or trial (it’s OK to say “Yes”); and
• Conversations you had with anyone other than your lawyer before the deposition or trial.
Parties will probably be asked questions about their personal knowledge of:
• Date of the marriage;
• Your age, occupation, and financial circumstances at the beginning of the marriage;
• Your employment and activities during the marriage;
• The names, ages, birth dates, and educational backgrounds of the children born of the marriage;
• What income, expenses, and assets were acquired during the marriage;
• What liabilities were incurred during the marriage;
• What your estimate of the fair market value of your assets are; and
• What the cause of the breakdown in the marriage was – what caused it and how the conduct of you or your spouse might have contributed to the breakdown;
• What you know and what you claim about any disputed issues in the case; and
• What relief you are requesting in this divorce case – what you will ask the judge to give to you.
Creating a Favorable Impression at a Deposition or Trial
What you wear will impact on how you are perceived as a witness. Dress for women at depositions or trial should be neat, conservative, and modest. Avoiding extreme or controversial fashions. Don’t wear casual clothing, too much makeup, or excessive jewelry. Certainly don’t wear skirts that are too short or necklines that are cut too low. A coat and tie with conservative colors is appropriate for men. Your hair should be worn in a neat, trim and acceptable fashion.
How you speak will also impact on how you are perceived as a witness. Body language can convey messages about your credibility. Speak clearly and distinctly. Use words that a layperson can understand, and use a normal tone of voice. Talk convincingly. Keep your hands folded in your lap. Don’t fiddle with your fingers or rings, and don’t put your hands up to your mouth. Always look at the questioner. Remember, however, when you answer questions at the trial, direct some of your responses to the questioner and be sure to look at the judge when answering some questions. Judges will gauge your sincerity and truthfulness by the directness with which you answer. At a deposition, look directly at the questioner when you answer.
It makes a good impression to be clear and emphatic when responding "I do" as you are sworn in by the court reporter or court clerk to tell the truth. Be sure always to tell the truth, even if you think the truth might harm your case. Do not exaggerate. Do not avoid a question if you know the answer.
Avoid expressions like "I imagine," "I guess," "it might have happened," "in my opinion," or "to the best of my recollection." In other words, don’t use "weasel" words. Also avoid phrases like "truthfully," "well, to tell the truth," "honestly," or "well, to be honest with you" that make it sounds as though you are vouching for your answer. Do not hesitate to correct any mistakes in your testimony.
When asked a question, don’t look around for help from your lawyer or the judge for guidance before answering. Your lawyer and the judge can’t answer questions for you. Your answers may look suspicious if it appears that you’re waiting for some prompt from another person.
Do not be afraid to say “I don’t know” or “I don’t remember.” There is absolutely nothing wrong with saying that you do not know. Don’t guess or speculate. Don’t answer a question if you do not understand what is being asked. You might give an answer that will hurt your case if you answer a question that you do not understand. Listen carefully to the questions and if you are not sure what is being asked, say so. Ask the lawyer to restate the question. Do not let the opposing lawyer browbeat you or put words in your mouth.
Listen to the question asked. If you know the answer, give a full and complete answer. Then stop. Don’t volunteer information. Don’t ramble. Don’t try to help the other lawyer out. Answer the question asked and then wait.
Don’t let opposing counsel browbeat you into giving a yes-or-no answer if to answer yes or no would be impossible – if there are some extenuating circumstances or other facts necessary to make your response meaningful. Be polite but tell the attorney that the question cannot be answered yes or no. At a deposition, your lawyer will help you. At trial, the court will usually help.
If your lawyer (or the lawyer for the party who named you as a witness) makes an objection to a question, do not answer the question. Wait to see what the other lawyer does (at a deposition) or what the judge does (at a trial). Do not answer until the controversy on the question is resolved. Then answer (or not) as your lawyer directs you.
Do speak plainly, directly, and with sincerity. Don’t be smug, pompous or condescending.
Do not argue with the opposing counsel, or be abrasive or hostile. When answering his questions be courteous, calm and composed – even if you feel he’s being rude or is asking a stupid question. Do not lose your temper.
Do not put down your spouse or any other witness or make fun of them. Do not try to be a comic. Jokes and wisecracks are not appropriate.
Never exaggerate. State your problems, any difficulties you may have, or your expenses simply and honestly.
Do not chew gum. Do not smoke – not even when there is a brief adjournment.
Be confident that preparation and honesty are key. If you keep this in mind, and remember the guidelines above (especially the reasons why these guidelines are proposed – to keep you from “shooting yourself in the foot”) you will be a great witness at a deposition or trial.