How to Testify in Court

How to Testify in Court

Your case is only as good as your ability and the ability of your witnesses to testify clearly in court.

It is said that communication is 70% nonverbal. In other words, when you are testifying, only 30% of your meaning is coming from the words you are using, with another whopping 70% of your communication coming from your face, gestures, eye movements, voice inflection and even the clothes you wear.

I’ve seen professional, intelligent, rational people destroy their cases because of the way they testify on the stand. My favorite examples is from a case I had many years ago and involves one of my own clients. He was a professional person, with a very likable demeanor. I gave him my usual tips for testifying, including telling him to treat the opposing counsel with the same respect he shows towards me. It looks really bad it you testify calmly and openly for your own attorney, but then turn hostile and obstructive when the opposing counsel takes over questioning.

So, after this warning, he takes the stand and does a fantastic job of testifying during my phase of the questioning. The opposing attorney then stands up to do his questioning. He begins by asking the judge if he may approach the witness, and then walked to the witness stand and handed my client a document. He walked back to the lectern, and had the following exchange with my client, who we will call Mr. Jones:

“Mr. Jones, I have just handed you a document. Do you recognize the document?”

“What document? You never handed me a document. Why would you say you handed me a document when you never handed me a document?”

We still won the case, but there was no reason to testify in that manner. The following video provides some very useful tips on how to testify in court.

 

 

If you are going it alone, or if you just want to understand what your attorney is doing, here are some excellent reference materials:

Civil Procedure Before Trial is the civil litigation bible in California. All judges are provided a set of these guides and they are what the judges refer to when they are deciding procedural matters.  They are hugely expensive to buy, but you can use them for free at any law library.  As far as I know, every county has at least one law library, usually near the courthouse.  If your financial circumstances are such that you simply can’t afford an attorney and you are trying to navigate the legal system by yourself, I cannot imagine trying to do so without access to Civil Procedure Before Trial.  Even after more than 20 years of litigation, I refer to these volumes on an almost daily basis.  And even if no law library is convenient to you and you are forced to buy these volumes, consider that the cost is less than what you would pay for three hours of an attorney’s time, on average.

Incidentally, judges and attorneys refer to this set of guides as “Weil and Brown”, referring to the judges that wrote it.  Technically it is what is referred to as a “secondary source” since it is not case law, but it is so well regarded that it is permissible to cite to it directly.  If you look on the first few pages it provides the proper citation format to be used when citing the materials in a brief.  With these volumes in hand, preparing or defending against a motion is far easier since all of the law and procedures are spelled out; you need only quote from the text.

Represent Yourself in Court: How to Prepare & Try a Winning Case, is an outstanding self-help litigation book.  If, understandably, you can’t afford Civil Procedure Before Trial, then this is the minimum investment you must make if you want to maximize your chances of winning.  This guide is so helpful in explaining the process that I sometimes provide copies to my clients so they can better understand what I am doing.  Even if you have access to Civil Procedure Before Trial, this offers a nice supplement since it explains things in layman’s terms.

Fewer than 10 percent of cases that are filed ever go all the way to trial.  They are either decided by way of motion, settled, or abandoned by the plaintiff.  However, if you are going it alone and find yourself approaching trial, then this DVD series is an excellent way to prepare for trial.  It offers a very detailed guide to witness questioning, introducing evidence, and the other parts of putting on a trial.  The author, Robin Yeamans, is a divorce attorney, so the examples are based on a family law matter, but the examples will be useful in any civil court proceeding.

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