Written by: Allan L. Ziffra, Esq.
We’ve all seen the law-themed television shows and movies. You know, the ones with the calculating attorney, slyly baiting the defensive witness; pushing little by little until the witness breaks down and blurts out some crucial bit of information, turning the trial upside down. Picture Tom Cruise and Jack Nicholson in their famous court room shouting match.
It may seem obvious, but if you are a plaintiff (the party suffering an injustice from another party’s negligence) in a personal injury trial or a claimant in a worker’s compensation or social security disability proceeding, the testimony you provide can have a big impact the outcome of your case. The bottom line: You do not want to follow Nicholson’s example. Trying to “outsmart” the attorney asking you questions or losing your cool can seriously cost you. While the purpose of this trial tip article is not to scare you or make you nervous about testifying, the importance of your firsthand account of your personal injury claim cannot be understated and it is something you should take very seriously.
What you say and how you say it can either portray you as a credible, injured victim, or a dishonest liar. Staying in control of your emotions and being courteous are easy ways to let the questioning attorney know that you are prepared for what they may ask you. Below are a few basic rules and potential “trap tactics” where attorneys can turn your own words against you. If you are knowledgeable about these areas, you will be on your way to a successful time on the witness stand.
Honesty is the Best Policy
Rule number one is to tell the truth. Nothing can be more damaging to your case than failing to be completely honest when you are testifying under oath. Any “white lie” or half truth gives the opposing attorney an opportunity to contradict you, either with something you may have previously said or with other evidence or records they have in their possession. If the judge or the jurors think you have lied about even the tiniest bit of information (even if it is completely unrelated to your personal injury claim) the rest of your testimony will be called into question. Giving jurors a reason to think you are not being truthful is a quick way to find yourself walking out of a courtroom with a losing verdict.
Answer the Question Asked of You
“Of course I’m going to answer their questions,” you might be thinking. What you don’t realize, though, is that the task is not so much about answering the questions, but distinguishing between answering a question and specifically answering only what is asked.
Ordinary conversation flows smoothly because we often change the subject and give whomever we are talking to new ideas about what to talk about. This is not something you want to do when you are testifying. Volunteering information that is outside the scope of the question that is asked gives the attorney new areas to question you about and could open the door to areas they may not have even known to question you about. If the attorney asks a yes or no question, your answer should be a yes or a no, not a five minute explanation of why that is the answer. The more concisely and directly you can answer a question, the better.
Keep in mind, this rule does not change the first rule about telling the truth. You can answer truthfully while being careful to only include information that has specifically been asked for.
Do Not Guess
If you do not know the answer to a question, do not be afraid to say so. If rule number one is to tell the truth, and the truth is that you are not 100% sure about an answer, do not guess about what you think the answer probably is or might be. Whether you are asked a question about something you do not remember or one about something you never knew about in the first place, guessing about things can cause problems. This is because, if your guess “flip-flops” between one idea and another, or if your guess turns out to not be the same as what you claimed before, it could make you appear as less than truthful.
When it comes to questions about things you could not possibly be expected to know for certain, don’t try to guess at these answers either. There will most likely be other witnesses and experts available to testify about those things. For example, if you do not known the proper terminology used to diagnose your injury, let the doctor testify about it. If you do not know about the distance your automobile traveled beyond the point of impact in an accident, let the accident reconstructionist answer that question. Just because you are asked a question, does not mean you are expected to know the answer.
Tell the truth. Answer only the question that is asked. Do not guess if you do not know or remember. These simple rules can be critical remember when testifying on your own behalf. Although you may never have to set foot inside of a courtroom to settle your personal injury claim, it can become important to follow these rules (and other tips given to you by your attorney) to help you avoid unintentionally damaging your own case if asked to testify.
The above entry is NOT LEGAL ADVICE and should not be intended or construed as such. It is intended only as general information. No individual reading it should act upon it. Reading this entry does not create any relationship between Rue & Ziffra and individuals reading it. If you have questions or concerns, please seek professional legal counsel.