When it comes to testifying, the first and most fundamental rule is to tell the truth. In addition to the obvious reasons, it’s hard to trick or trap someone who’s telling the truth about everything. But sometimes witnesses are afraid to admit to mistakes or biases and inadvertently appear less than honest.
Witnesses may think that their testimony is like a test in which they must have all the “right” answers, true or not, or they fail. Or they may feel that once they’ve said something in error they have to stick with it for consistency’s sake. It’s your job to disabuse them of these beliefs and help them to keep the jury on their side.
A jury will almost always forgive a witness who has erred in the past and who gives answers that are inconsistent with her litigation claims, as long as the witness admits to the error on the stand. You should impress on your client and witnesses to do the following:
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Admit bias. For example, a plaintiff in a multi-million-dollar lawsuit shouldn’t tell the jury that the outcome of the case means nothing to her.
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Admit deposition errors, without embarrassment. We all make mistakes and jurors will relate to that.
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Admit mistaken testimony as soon as it’s pointed out. This is simple to do: “I’m a bit nervous, and I got confused a moment ago. The truth is …..”
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Don’t cling to peripheral details. It may matter very much whether the light was red; it rarely matters whether or not a bystander’s tie was red. Many witnesses assert as incontrovertible truth minor facts that are contradicted by other reliable evidence. Advise them not to do that. The witness should stick to the truth as she recalls it, but she must admit the possibility of error, or qualify an answer that conflicts with other reliable testimony or physical evidence.
Get expert advice for preparing favorable witnesses for cross-examination in CEB’s Effective Direct and Cross-Examination, chap 6. And check out CEB’s program Preparing Witnesses for Deposition and Trial, available On Demand.
Other CEBblog
posts on preparing witnesses to testify:
- Checklist for Preparing Your Witness for Trial
- Prepare Your Expert to Testify: A Checklist
- 10 Things to Cover with Your Witness Before Trial
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