GUIDELINES FOR BEING A GOOD WITNESS

As a company executive, it is inevitable that at some point you will be required to be a witness in a legal proceeding. Most likely, this will occur at a deposition before trial. Over the years, we have developed many tips for our clients who are involved in employment litigation in courts or in administrative agency proceedings. We believe that these tips will serve any witness well in any kind of proceeding in any kind of forum:

1.         Tell the truth.  We have seen it happen over and over again. When witnesses don’t tell the truth, they get caught in the web of lies they create. The bottom line is most people are not very good at lying. Most cases are determined by the credibility of the witnesses. An exposed lie can lead to the undermining of the entire case, which could otherwise be strong. It is better to admit to mistakes than deny that they happened.

2.         Don’t guess.  This is actually a corollary of the above. When you offer a guess, you are not telling the truth. If you don’t know the answer to a question, the truthful answer is “I don’t know.” If you don’t remember what happened, the truthful answer is “I don’t remember.” [By the way, never say “I don’t recall” in response to a question. Only people on courtroom television programs, say that. Real people don’t talk that way.]  When you guess at an answer, this can lead you down a road you don’t want to go. A deposition is not a classroom exam. You don’t get a grade based on how many questions you are able to answer. Many executives feel a need at deposition to show how smart they are and are not comfortable with admitting a lack of knowledge. However, no one is capable of knowing everything that may be relevant in any particular case.

3.         Prepare.  To establish yourself as a credible and knowledgeable witness, you must prepare with your attorney so that you are able to answer the questions a reasonable juror would expect you to be able to answer. You should be familiar with relevant documents and the significant events that led to the case. You don’t have to know exact dates, but you should be able to set forth events in chronological order. Your attorney can’t answer the questions for you at a deposition. You are the one who will have to provide the answers. The time you spend in preparing is time well-spent.

4.         Listen to the question.  This seems obvious, but you would be surprised how often witnesses answer questions that have not been asked. If the question is “When did this happen?” don’t answer the question by telling the questioner where it happened. Listen to the whole question. Pause before beginning your answer. Ask yourself what information the questioner wants and then provide that information.

5.         Don’t volunteer information.  After you have listened to the question and ascertained what information is requested, provide only that information. I like to give my clients this example: “If you are asked if you have the time, what is your answer?” The correct answer is yes or no, depending on whether or not you have a watch with you. Most witnesses will provide you with the time, even though the questioner did not ask “What is the time?” Every time a witness volunteers information, it can lead to an additional ten to twenty questions that could otherwise be avoided. Make the questioner ask you the follow-up question. Resist the temptation to be overly helpful to the questioner.

6.         Don’t try to justify or explain your answer.  This is a corollary to the above. There is a strong temptation for witnesses to justify or explain answers that they feel are damaging. Resist that temptation. If your answer is “I don’t remember”, don’t add “It happened a long time ago.” This may diminish the credibility of your answers to other questions that dealt with other events that happened “a long time ago”.

7.         Control your emotions.  You want to establish yourself to the opposition as someone trustworthy that the jury would like and believe. This improves your chances of a getting a favorable settlement. Remember, the vast majority of cases are concluded by a settlement. You do not help your case by making emotional outbursts about the injustice of being sued in such a frivolous case. When you do that, you let the opposition know they can get to you and gives them confidence to proceed to trial. You must keep your emotions in check, even if you are being asked the same question for what may seem like the tenth time.

Litigation is an expensive and time-consuming process. Usually, big stakes are involved. You and your attorney constitute a team. To get a successful result, you have to do your share as part of that team. By following these guidelines, you will be contributing to the chances for success in the litigation and minimizing the potential that your experience as a witness will be negative.