When you are asked to appear in court, you will be testifying at a trial or hearing presided over by a judge. There may or may not be a jury. A court stenographer will record the entire proceeding (anything said). The judge is there to assist you if you do not understand a question and to see that you are treated respectfully.
When you are asked to appear at a lawyer’s office or to testify at your own office, you will be testifying at a deposition. There is no judge present at a deposition. A deposition is like a mini-trial, except that it is informal. Usually, at a deposition, you, the lawyers from both sides, and a court reporter sit around a table; the parties to the lawsuit may or may not be present. As in court, your testimony is taken under oath. The court stenographer will record all questions and answers.
At the end of the deposition, you may be asked if you will waive signature. You have a right to review the transcript produced by the court reporter and to correct any errors. Please note that you can only correct errors in transcription, e.g., if you said “the client had a CD problem” and the court reporter recorded it as “seedy problem”. You cannot change your testimony no matter how uncomfortable you are with what you said. Because court reporters are professional and usually do not make a lot of errors, you can waive reviewing and signing the transcript. It is up to you whether you want to spend the time reviewing the transcript or are willing to rely on the court reporter’s expertise.
Tips on Testifying
- Listen very carefully to each question asked. Make sure you understand each question and give an accurate answer to the best of your ability. If you do not know the answer, be sure to say so.
- Answer only what is asked. Do not volunteer information; if you think the lawyer asked the wrong question, that is the lawyer’s problem. However, it is not necessary to answer in monosyllables. You do not want to give the impression that you are withholding information.
- Be yourself and answer in your own words. Do not pause to try and figure out if your answer will hurt or help the case.
- If you do not understand a question, ask for clarification. You do not want to answer the wrong question. You may also ask that the question be repeated.
- If you do not know the answer to a question, please say so. You are not expected to know everything. Even if you say, “I don’t know” repeatedly, you do not need to feel stupid or that being repetitive is wrong.
- If you do not remember, say so. With all the cases you work with, you cannot possibly remember every detail on all of the cases.
- If a lawyer makes an objection, stop speaking immediately, wait until both lawyers have had their opportunity to state their objections, if unsure when to continue speaking, ask.
In a trial: the judge will make a ruling on the objection. If the objection is sustained, you do not need to answer the question. If the objection is denied, you need to proceed with responding to the question. If you do not understand, ask for clarification, turn and ask the judge, “does that mean that I should go ahead and answer the question?”
In a deposition: the lawyers will state their positions for the record. Because a judge is not present at a deposition, the objection will not be resolved at this time. The objection will simply be noted in the court reporter’s transcript. This will preserve the lawyers objection for resolution at the trial should the question be asked at the trial or your deposition is used at the trial in lieu of live testimony. Usually, after both lawyers have stated their positions for the record, you will be instructed to answer the question. If you are unsure, ask if you should proceed.
- If you do not remember a question, ask for it to be repeated. In most cases, the court reporter will read it back to you. It is the attorney’s duty to make a question answerable. If you did not hear it or understand it, ask for it to be repeated.
- If you think that a question has been asked before, you can say, “I think I have already answered that.” The lawyer may respond that it is not exactly the same question and insist that you answer again. However, your indication that you answered previously may alert the other lawyer to intercede on your behalf if there are additional questions along the same line. The questioning lawyer may be trying to trip you up by getting you to answer differently when the question is asked in a different way.
- If you are requested to bring records with you, you are not required to study the file before appearing. You do not need to look at it at all. It will be available during the testimony for your reference. It is up to you whether you review the file before your appearance.
- Try to avoid giving a professional opinion, particularly if the case is against a client organization or another individual client. If you get pushed into giving an opinion, use as many qualifiers as possible. For example, “As I said before, I am not an expert and did not evaluate Ms. X in this connection, however, given the facts that you stated, it is possible that…”.
- Do not be hard on yourself if you say something you did not intend to say or something that, in retrospect, does not make sense. Witnesses frequently have regrets about what they said. Even if you prepare for the experience, it is likely that you will be caught off-guard on some issues; you cannot predict how the questions will be asked or all the paths of inquiry.
- Do not personalize criticisms or implied criticisms of your testimony or your handling of the case. You have to realize that a trial or a deposition, to some extent—is a drama in which you are playing The Witness and the lawyers get to play their part. If your testimony is adverse to their case, their role is to discredit The Witness. But that does not mean that you are stupid or foolish or incompetent. Remember, if the other attorney makes you feel uneasy, he is just doing his job. You are NOT the one on trial. You are in control.
- Being polite makes a good impression. Do not argue with attorneys or allow yourself to become upset during questioning. Remain calm and do not lose your temper.
- Above all, tell the truth. You are there as a reporter only, not as an advocate.
Magellan charges for its employees to testify in a court proceeding or at a deposition.