The online guide to being an effective witness

Note - All of the information here was presented at the "Mock Civil Trial: Are You Prepared To Be A Witness" workshop in Brantford,Ontario, on May 4, 1998. It was a presentation of Brantford General Hospital and Sawyers Liswood Hickman (Barristers and Solicitors). These notes are a combination of Joshua Liswood's "Mock Trial: Role of a Witness" and his workshop presentation, they are, in part, reprinted here with his permission.

What to expect in the courtroom
As either an expert or actual witness one should expect to go through three stages during trial:
(a)    The Examination in Chief - where one is examined by those whom called that witness, in an attempt to build/support the case, weaken opponent's case, or strengthen/weaken credibility.
(b)    Cross Examination - A witness is questioned by the opposing side, to weaken or destroy the opponent's case, to support the cross examiners own case through the testimony of the opponents witnesses, or to discredit the witness, and thereby their testimony.

During cross examination, "opposing counsel is given wide latitude and there are few restrictions on the types of questions that may be asked or the manner in which the questions may be asked. Any question which is relevant to the witness' credibility is allowed."
(c) Re-examination - One is re-examined by the person whom called the witness in order to explain/clarify testimony that was brought forward during cross examination.

Guidelines for being a witness (reprinted directly from Liswood (1998) with permission, sections in blue have been added from comments during his presentation).

The following are some helpful guidelines for a witness undergoing examination in a trial or any hearing:

Before Testifying:
(1)    Be on time, and be well rested.
(2)    Dress appropriately and be neatly groomed.
(3)    Prepare, but do not memorize. Read all the relevant documents and organize your recollection of the facts regarding the incident.
(4)    Be sure to have reviewed any oral evidence which you may have given during discovery (arraignment in criminal law) before trial.

Approach:
(1)    Act naturally, and avoid potentially offensive behaviour. Cross-examination is generally the worst part of giving evidence. A good cross-examiner can make the most truthful witness appear uncertain and confused. A vigorous cross-examination may occasionally seem like a personal attack on the witness, but it is the evidence that the cross -examiner is attacking, not the person. Avoid becoming angry or flustered. The cross-examiner may be deliberately provoking the witness.   Do not go on the defensive, stick to the facts!
(2)    Be polite, sincere and courteous at all times.
(3)    Relax. Look at the jury when answering questions. In non-jury trials, address yourself to the trier of fact (judge or arbitrator) when answering.
(4)    Appear interested

Listen:
(1) Understand the question.
(i)    Listen carefully to every question and be sure you understand it before answering. Answer only that question. Do not ramble on or volunteer information.
(ii)   If you do not understand a question, say so and counsel will rephrase it. If you can't remember an answer to a question, say, "I can't recall" or "I can't remember". If you can only approximate dates, times and distances, give only your best approximation. If you cannot answer a question "yes", or "no", say so and explain your answer. However, give positive, clear and direct answers to every question whenever possible.
(2) Think.
(3) Listen to objections. If an objection is made by either side to any question or answer, stop. Wait for the   judge to rule if he overrules the objections, answer the question. If he sustains the objections, simply wait for the question. Never try to squeeze an answer in when an objection has been made.
(4) Beware of compound questions.
(5) Pay attention to verb tenses.
(6) Request clarification
(7) Do not simply accept assumptions and summaries.
(8) Asking an attorney to rephrase the question may make them drop it all together, because they themselves do not understand it and were just told to ask it by their own experts!
(9) Be sure to ask for clarity in any ambiguous questions. Do not assume that you know what they mean.
(10) Do not assume you know the next question and thereby answer it. Just answer the question you were asked. Again the attorney may not fully understand the questioning and by giving more information you may be answering follow up questions that they would of never had.

Answer:
(1) Do not volunteer. Do not use the witness box to show how knowledgeable you are. What you think is harmless may be the downfall of the case. Explain your testimony in simple, succinct terminology.
(2) Do not guess.
(i) Do not hesitate to refuse to answer a question outside the scope of your expertise.
(ii) Unless you are testifying as an expert you will be allowed to testify only to what you personally saw, heard, and did. You cannot testify as to what others know, or to conclusions, opinions, and speculations.
(3) Do not be argumentative or evasive.
(i) Do not be antagonistic towards the opposing counsel, the jury may already be somewhat sympathetic toward the injured party; your antagonism may only serve to reinforce such an impression.
(ii) Do not allow yourself to become overpowered by the cross-examiner; the lawyer is human too! Never argue with counsel or the judge. Never lose your temper. Counsel on cross-examination may attempt to confuse you, have you argue with him, or have you lose your temper. Resist these temptations. Do not get angry.
(iii) Do not look at the judge or counsel for help on difficult questions.
(iv) Be straight forward with counsel. Any answers designed to cover up or cloud an issue or fact will, if discovered, serve only to discredit any previous testimony you may have given.
(4) Do not be over cautious.
(5) Do not over-dramatize the facts you are relating.
(6) Use words, not gestures. Speak clearly and loudly so that you may be easily heard. Do not show any visible signs of displeasure regarding any testimony with which you are in disagreement.

General:
(1) Never deny discussing the case with our lawyer when questioned about such a practice.
(2) Always tell the complete truth according to your best recollection, and as accurately as possible, the facts and events involved.
(3) So your being used as an expert!

Expert witnesses are used when information is expected to be of a scope beyond that of what the layman would likely know. "At the time of testifying, the expert's training, experience, and special qualifications will be explained to the jury. These are summarized and outlined in the expert's curriculum vitae (or CV, its like a resume). As an expert, one should be prepared to be criticized, or even professionally questioned, via the
cross examiner.