More often than not, when you find yourself as a witness in court it’s not a pleasant experience. However, there are several things you can do to improve your time in front of the judge. Here at Bittner Legal, we’ve developed a guide on how to be a better witness in court. From Appellate Court to disputes on wills and trusts, use the following steps to help be a better witness in court:
Prepare: Know where you are going, double-check what time you are supposed to be there, allow an additional 15 minutes to find parking and walk to the courthouse (there is no convenient parking). Be on time! Even better, be early. You have to go through metal detectors, so do not bring any knives, guns or other weapons. The security staff will take it away from you and will throw it away (they refuse to store things for you). It is ok to ask court staff for directions on where your courtroom is. Wait in the general lobby area outside of your assigned courtroom. When your hearing is beginning, a Bailiff will come out and call the name of your case.
Bailiffs are law enforcement officers who protect the judges and ensure that everyone acts respectfully in court. They can arrest you. They can administer urinalysis drug screens. They carry weapons and are authorized to use force in their jobs. Be respectful to them as you would any other Police Officer.
Attire: no tank-tops or sleeveless shirts, no shorts and no flip-flops. If you are active-duty military or law enforcement, do not wear your uniform unless it is mandatory because you are in the middle of a shift. No gum-chewing or outside food or drinks are allowed in the courtroom. Remember, you want to make a good first impression, so if you have a lot of tattoos and/or piercings, it is better to be discreet and wear long sleeves and remove piercings for court. Lounge wear discouraged (jeans, t-shirts, sweatpants) and casual business attire is preferred (suits, slacks, dresses).
Every witness that is not a party to the action (if you are not the Plaintiff or Defendant) must sit outside of the court room and wait until called in to give their testimony (this is called invoking the rule of witness exclusion). This is so that you cannot hear what other witnesses say and therefore your testimony is independent from the influence of other people. You will enter the court room, go up to the witness stand, be sworn to tell the truth by the Deputy and then sit down. The attorney will then ask you questions. After one attorney asks you questions, the other attorney has the opportunity to also ask you questions based on what you said. The Judge can interrupt at any point and ask a question. All court proceedings are video recorded, so speak clearly so that the audio equipment can pick up your voice. You will see a microphone on the witness stand in front of you and you need to make sure it does not get obstructed or knocked off the stand. You may also have exhibit binders or stacks of exhibits in front of you. Do not touch any of the exhibits until either an attorney or the judge asks you to look at a specific exhibit.
Your body language and how you say what you say:
If you want the judge to take you seriously, then you must act respectful. There is a camera positioned directly in front of you so when you are on the witness stand the judge can see a live video of you from the front. You do not need to turn and talk to the judge to make a point because they can see you from the camera. You will notice that the majority of the time, the judge will not be looking at you, but at the screen in front of them. Sit up straight, do not slouch. Keep your hands in your lap, do not gesture wildly. Do not point at anyone when talking as this can be interpreted as being confrontational. Do not use curse words unless you have been asked to repeat something that someone else told you. Do not yell or raise your voice to make a point.
How to answer questions:
It is best to wait a moment after the question has been asked to think about your answer before blurting it out. Everyone is nervous on the witness stand, so it is easy to try and talk too quickly. Remember, the court proceedings are video recorded, so if you talk over the attorney asking the question by starting to respond too quickly, or even by agreeing out loud while they are asking the question, the video/audio recording becomes jumbled and the record of the proceeding inadequate. Wait for the question to be asked, then wait 2-5 seconds before responding. Keep your answer simple and on topic in response to the question. Do not elaborate. If the attorney wants you to elaborate, they will ask you to. For example, if an attorney asks you what time it was when you saw the deer cross the road, your answer should be “about 9:15 p.m.” The end. Do not say, “it was about 9:15 p.m. because it was already dark and my car clock said 10:15 p.m. which is really 9:15 p.m. because I always forget to turn my clocks back for daylight savings.” The answer is “about 9:15 p.m.” The next question the attorney can ask is, “how do you know what time it was?” Then you can give the description about ambient circumstances.
Do not get defensive. Even when an attorney is being aggressive with you and trying to get you upset, try to remain calm. Your tone of voice will speak volumes about what you are saying and can change whether or not the Judge believes what you are saying. If you become defensive and argumentative with the attorney asking you questions, the Judge will hear that and not take your testimony seriously.
What questions can a witness ask?
Can you please repeat the question?
I’m sorry, I don’t understand the question. Can you please ask it in a different way?
I cannot see what you are describing in this exhibit. Can you please show me or give me a description of what I’m looking for?
That’s pretty much it. DO NOT ask sarcastic or rhetorical questions in response to an attorney’s question. Those types of questions would be if you said: “No, would you do that?” “I don’t think that is reasonable, do you?” “How would you like it if someone treated you that way?”
These are all argumentative questions and make you look like a bad witness. It is also a sure-fired way to get the Judge angry with you and for you to get reprimanded by the Judge.
Can I get in trouble? Yes. The judge can find you in contempt of court for refusing to answer questions, for repeatedly being argumentative, or for lying. The judge can impose a fine on you or in the worst case, put you in jail.
OBJECTION! What to do when you hear an attorney say “Objection!”
Stop talking. Do not start talking again until you are told to do so. Once an attorney says the word “Objection,” a whole mini-procedure must occur before the witness can start talking again. First, the attorney making the objection must identify why they are making it, then the other attorney must state any relevant exceptions or reasons why the objection doesn’t apply to this situation, then the judge must rule on the objection by either sustaining the objection (agreeing with the attorney who made the objection, which means no more answering the question) or over-ruling the objection (disagreeing with the attorney who made the objection, which means you can keep answering the question). Just look for someone (the attorney asking you questions, or the judge) to tell you to start talking again before you say anything. By now you will probably have forgotten what the question is and what you were saying, so you can ask that the question be repeated. If you get confused because the attorney did not clearly tell you the result of the objection, it is ok to ask the attorney for clarity on whether or not you can continue answering the question.
Hearsay: This is the most common objection that you will hear attorneys make. Hearsay is anything that someone else said if that other person is not in court at the moment that you are repeating what they said. Often times, we get information from what other people told us. But it is not reliable information if the person who said it is not in court to say how they know the information or testify as to why it is true. So if your neighbor told you that someone was lurking in your yard, and then you are asked on the witness stand by an attorney how you knew someone was in your yard and you say, “my neighbor told me,” then chances are good an attorney will make a hearsay objection and your testimony about how you found out the information of someone being in your yard will not be allowed in and the judge is supposed to ignore that you said it. You are supposed to be testifying to things that you personally know or saw happen. So if you said that you knew someone was in your yard because you saw video footage, or saw someone jumping over the fence, or saw footprints, then those are all things you personally witnessed and are not hearsay. Try to stick to only testifying about things you personally witnessed or experienced. If you have to relay information someone else told you, go ahead and try. Sometimes the other attorney will not object and sometimes the judge will let it in. Just remember that you are trying to only offer testimony about what you personally experienced.
How do I handle exhibits?
The attorney will tell you to look at an exhibit number or letter that may be in a binder or as loose papers in front of you. If there are no exhibits in front of you, the attorney will approach and hand you an exhibit. What is important about exhibits is properly identifying what they are before the Judge can consider looking at it or admitting the exhibit. The attorney will ask you questions to try and “lay the foundation” of what this exhibit is. Questions such as:
- what it is – you respond with identifying what you are looking at. You might be looking at a picture, a text message, an email, a valuation report, a map, etc.
- where did it come from – did you provide this information, was it sent to you and by whom, and is this something you have ever seen before?
- What does it show – is it a conversation between you and someone else about a particular topic, is it a picture of a house you once lived in, is it a map of where you currently live…
After enough description of the exhibit has been provided by you, the attorney will say, “Move to admit Exhibit 1,” and the other attorney may object or not, and then the judge will rule on the admissibility of the exhibit, either admitting the exhibit or excluding the exhibit. If the exhibit is admitted, then the Judge can look at it and you will most likely be asked more questions about it.
When you are done: If both attorneys “release” you then that means they are not going to call you as a witness again. Usually, you can stay in the courtroom after that and hear the remainder of the testimony from other witnesses. If you stay in the courtroom, you cannot make any comments, cannot nod your head or react (eye rolling, heavy sighing, etc.) when other witnesses testify. You must stay completely quiet and not be disruptive. If the attorneys think they may have more questions for you, then the Bailiff will ask you to wait outside and not discuss your testimony or the case with anyone else until the hearing is over. If you are released and you leave, the Judge will still ask you not to discuss your testimony or the case with anyone until the hearing is over.