The Most Important Asset a Witness Needs Is Credibility
If the jury or judge does not believe the witness’s testimony, or even a small portion of the testimony on an important issue in the case, the case will likely be lost.
Interestingly, I run into many witnesses who perceive themselves to be very likeable and believable – but who are actually slippery, shady or otherwise give off a suspicious air. Even honest and good people can appear untrustworthy. All of these people can be good or even great witnesses if they follow a few basic rules.
Tell the Truth
I know that sounds fundamental, but it’s harder than you may think. Too often, I have clients or witnesses who veer away from the truth on the witness stand, either intentionally or by accident. For example, sometimes the witness just doesn’t recall exactly what happened but, instead of admitting that, she makes up what she doesn’t remember. While that seems innocent enough, on cross-examination, a very good trial lawyer will tear apart pieces of the make-believe testimony – or maybe even a single seemingly important part of her story. This impeachment will cause the jury or judge to disbelieve the witness’s entire testimony.
Other times, I see witnesses who obviously believe they can lie better than anyone else. They appear to believe they are actors on par with Jack Nicholson or Meryl Streep. Maybe they are. But, opposing attorney’s are skilled at dissecting the liar’s testimony and highlighting the inconsistencies and outright lies. The “tangled web” saying came about for a reason. Very few people tend to think through their lies at enough levels to come up with good answers to probing cross-examination.
Preparation for deposition and trial is the witness’s best tool. Witnesses most often get into trouble because they just don’t remember all of the facts in great detail. The best cure to this problem is to review very thoroughly – refreshing your memory – several times – all of the documents relevant to the case and to rehearse telling the story of what happened. The fresher the witness’s memory is about the events and transactions at issue, the better her testimony will be.
During the witness testimony, it is critical to listen carefully to the questions, responding to opposing counsel with sufficient volume and clarity to ensure the court reporter can hear you well. Answer only the questions posted to you and do not volunteer information, unless directly pertinent. Your attorney will be with you, confirming when you should answer questions and applying the rules of evidence for your case.
Win the Case
Finally, hire the lawyer with the best record of success at trial. An excellent trial lawyer will coach you and test your recollection and prepare you to feel confident while testifying. Those lawyers win their cases for a reason. You might as well hire that expertise to help you win your case.