Going to Trial? Ten Commandments for Witness

03/05/07

Worse has come to worst and you’ll be facing a former employee in a courtroom. Get your ducks in a row before you have to sit in a witness box.

“We win or lose cases based on how the witness tells the story,” attorney Allan H. Weitzman recently told a group of HR professionals.

Testifying at a trial that results from discrimination, wrongful discharge or other labor-related lawsuit is nothing to take lightly. That’s why Weitzman, a partner with Proskauer Rose in Boca Raton, Florida, has come up with ten commandments for those called to the stand. (Note: The commandments are also applicable for depositions-when the plaintiff’s attorney questions you on the record pre-trial.)

Take note of a common theme underlying each of the commandments: Don’t give the opposing side opportunities to learn things that may bolster their case. Stick to the question asked, tell the truth, don’t speculate, and know when to keep quiet.

Commandment 1: Be honest. Weitzman quoted a colleague’s three most important rules for any witness:

1. Tell the truth.
2. Tell the truth.
3. Tell the truth.

“If you get caught in one little lie,” said Weitzman, “two bad things happen: It calls into question everything else you say, and it opens you up to punitive damages.” What’s more, Weitzman added, “Juries hate liars.”

Commandment 2: Pay attention to your demeanor. According to Weitzman, it’s best to appear unbiased and neutral. Show respect to everyone in the courtroom, and don’t argue. Avoid strong adjectives, as in “He was a terrible employee,” or “She was corrupt.” Instead, use simple language, letting the facts speak for themselves.

Restrain, too, your body language. For example, don’t bang your fist on the witness stand.

Commandment 3: Listen carefully to the question. Answer a question only when you’ve heard all of it and understand it completely.

Commandment 4: Pause before responding. “Pauses,” said Weitzman, “give your lawyer a chance to object to the question.” They also give you time to formulate your answer to the question asked. Moreover, pausing encourages the judge and jury to focus on your answer.

Commandment 5: Request that the question be clarified. Weitzman: “You are under no obligation to answer until you understand the question completely.” However, avoid asking a clarifying question in response. Example: “Do you mean was I the only one to miss the harassment training or did others, too?” A question like that provides a great opportunity for an astute opposing attorney: “Oh, did other managers miss the training, too?”

Commandment 6: Answer only the question asked; don’t volunteer. “This,” said Weitzman, “is what kills us [lawyers]. And it’s the most frequently violated commandment.” Say the plaintiff’s attorney asks something as simple as “Do you know what time it is?” Wrong answer: “10:45.” Right answer: “Yes,” or “No.”

Weitzman quoted from an actual deposition relating to a discrimination lawsuit, in which the other attorney asked his client, “Was there a time when you were Equal Opportunity Officer at your present employer?” The correct answer was a simple yes or no, said Weitzman. Instead, the man answered, “There was a time that we didn’t have anybody assigned to that, and I never did anything per se for that.”

As you can see, the witness has introduced new, potentially damaging evidence.

Again, the more you talk, the more opportunity the other side has to discover fresh information that may cast doubt on your version of events.

Weitzman also advises against bringing documents to a deposition or hearing-or to disclose their existence except under direct questioning.

Commandment 7: Direct answers to judge and/or jury. Doing so enhances your credibility.

Commandment 8: Admit lack of knowledge. Don’t guess. If you don’t know the answer to a question, say so. Further, don’t use hedging phrases like “I suppose so,” “I believe so, “I assume so.” According to Weitzman, your corporate ego sometimes gets in the way of your common sense. “You feel that, in your position, you should know the answer, and your ego answers a question your brain doesn’t know the answer to.” That gets you into trouble.

In addition, if you’re asked to answer a question about a document, ask to see it first. Read it slowly to ensure you understand what you are looking at and what it says.

Commandment 9: If the answer is “no,” respond “no.”Avoid statements like, “I don’t think so.” If your answer is at all equivocal, a judge or jury could interpret it to be a yes. For example, in the deposition mentioned above, the plaintiff’s attorney asked, “Did you have anything to do with contributing that language in the third paragraph of the document in question?” The man answered, “I don’t think I authored this document, if that’s what you’re asking me.” A judge or juror might think, “I didn’t hear a clear no, so maybe he did.”

Commandment 10: Get plenty of sleep and eat a large breakfast!A trial or deposition can take a lot out of you. And if you’re not at your best, you may make a mistake that opens a door for the other side. “If you need a break,” said Weitzman, “say so. And if your attorney says you need a break, don’t argue. He or she wants you to stop talking!”