“The information presented in this page is generic text covering many aspects of court conduct and what to expect in one fell swoop. Some may not apply to divorce hearings or to traffic court. If you are involved in a trial before a jury, substitute “jury” for “judge.” In both cases, the general concepts and concerns hopefully are still useful to you.”
Attorney John Walsh
Your success in court depends upon numerous factors, not the least of which is your testimony, demeanor and appearance of truthfulness. In an ideal world, the truth would be determined, and therefore, justice done regardless of extraneous factors such as how you look and talk and how you respond to questions.
But ours is not an ideal world. Lots of different factors determine how the finder of fact (the judge or the jury) perceives your truthfulness. Here are some thoughts on how to make your best case.
Dress neatly and nicely for all court appearances, especially those in which you will be testifying. It may be unfortunate that people judge other people by the clothes they wear – but they do. If you want the judge to think you are one of the “good guys” then dress like one – and not like a zombie biker. Going-to-church clothes are very appropriate. Going-to-a-wedding clothes are not. Do not chew gum or smoke. Walk and stand erect. Do not slouch in the witness stand or slur your words.
Look at the judge when you talk. Be serious and forceful. Do not cover your mouth or avert your eyes. Remember that you are trying to convince the judge. So talk to him or her and not to me. I already believe you. Don’t try to argue with the other attorney when he or she questions you. Too many times a client answers his or her attorney in the most polite of tones, and turns venomous towards the other attorney’s inquiry.
Here is a good example of how not to answer the opposing attorney’s inquiry:
Q: “Who else lives with you in your household?”
A: “I don’t know what this has got to do with this case? What business is it of yours who I live with? Do I ask you who lives at your house?”
Just answer the questions. If it is objectionable, I will object. Do not look at me before you answer as if you are seeking help or after you answer the question as if you are seeking approval. Be polite; it makes a good impression on the court. Answer, “Yes, sir” or “Madam” and address the judge as “Your Honor.” Try not to appear nervous, scared, argumentative, or angry. If the other side baits you into becoming angry, it is probably trying to set you up for a trap, so keep your cool. Lose your temper, and you may lose your case. Tell the truth. It is going to come out eventually anyway, and it is better coming from you than from the other side. If the other side catches you in a lie, you may lose your case. The judge (or jury) has the right to disregard all of your testimony even if you tell just a small lie. Make sure you have told the truth to me before you are forced to tell it in court. I hate surprises.
Listen carefully to all questions, whether posed by me or by the other side. Pause, make sure you understand the question, then take your time and answer that question. You cannot give a truthful and accurate answer if you do not understand the question. If you ask, the attorney will repeat the question. Do not tell the court “I think” or what it “must have been.” The court does not normally care what you think or what could have happened. It wants to know what actually happened to the best of your knowledge. If you estimate a time or a cost, make sure the court knows it is an estimate. If you make a mistake during your testimony, correct it as soon as possible. Politely say something such as, “May I correct something I said earlier?” When the other side asks you a question to which you do not know the answer, you may say, “I do not know.” Witnesses are often trapped by being led into areas about which their knowledge is inadequate. They try to save face and end up making statements that are incorrect, and sometimes just plain ludicrous.
Sometimes however it is reasonable to expect, for example, an estimate to be given. Guesstimates of distance and of time are sometimes the only thing the jury has to get a picture of the scene of the accident, crime, event, etc… A refusal to make even a rough estimate when asked by your attorney (or the opposing counsel) sometimes sounds like you are hiding something. Here’s an example:
Attorney: About how far behind the car in front of you did you stop?
You: I can’t recall.
Attorney: Was it a great distance, or was it fairly close?
You: I don’t remember so I’d rather not make a guess.
Attorney: Was it more, less or about the same as the distance from you to the furthest jury member?
You: I don’t know.
The jury did not believe that the plaintiff (who had earlier testified that she was fully aware of her surroundings just before the accident) couldn’t even make an educated guess about such an important detail. The jury then decided to disregard some very specific information the plaintiff provided on much less critical, but nevertheless important, evidence, figuring the plaintiff was hiding something important. It returned a $0 verdict.
Now, before you do make any estimate, take a moment to mentally check the reasonableness of your statement. In this example (which comes from a real personal injury case — if you are reading this in the divorce section of the site, picture a similar set of questions in the divorce arena), the defendant had testified that she had stopped at the red light at the intersection where she wanted to turn right on red. She had checked both ways for traffic and saw none. She proceeded to make the right hand turn and struck a pedestrian (the plaintiff).
Attorney: Was there any traffic coming from any direction before you made your turn?
You: No. The streets were empty.
Attorney: How long did you wait at the traffic light before you made your turn?
You: I don’t know.
Attorney: Can you estimate the time?
You: Well it was at least two minutes.
The jury giggled, and the value of the case climbed sharply (in favor of the plaintiff) because the answer was so ludicrous.
You can usually avoid the problem by saying “I do not know,” but do so only if it is also true. In cross-examinations most questions can be answered with “yes,” “no,” “I do not know,” or with a simple sentence.
Do not ever use “Watergate” words. Everybody in the United States disbelieved the witnesses at the Watergate hearing when they repeatedly answered “I don’t recall doing that.” Your statement that “I don’t recall hitting him over the head with a baseball bat,” brings an equal amount of suspicion. And when you say “To the best of my recollection. . .” people think you are getting ready to lie to them.
If you were asked if you did something or were somewhere at a particular time and you are sure you did not do it or were not there, it is perfectly okay to say “I did not do it” and “I was not there.”
In a recent criminal case, the defendant raised as an alibi that she was working across town at the time of the offense. When asked by the prosecutor if she was near the scene of the crime near the time the crime occurred, instead of saying “no” (which I believe was the correct response–her alibi really was believable), she replied “I don’t recall being there at that time.” What does a statement like that mean to you? Of course: it means (or at least the trier of fact believed) she was there!
Do not let the other attorney pull you into testifying to more than you need to by standing there looking at you, waiting for you to add material. When you are finished with your answer, shut up.
One of the oldest tricks in the book is for the other side to ask you if you have discussed the case with your attorney. If you are asked that question, then tell the truth — “of course I have.” The other side is not asking you if you have fabricated the story, but it is asking you if you and I have talked about it. Only a fool would go to court without having discussed the case with his or her attorney. The answer is ‘Yes.’
We are all afraid of things we do not understand. To help yourself, you should review beforehand any documents you will refer to during your testimony. Also, review any statement you made, and talk to friends, family, or co-workers to recall details you have forgotten. A visit to the court before your case may make you more comfortable about your court appearance. After you watch a few cases, you will see that no one dies or is seriously injured when testifying. You will feel better when it is your turn.
Always check with my office a couple of days before court to make sure your case will be heard. Cases are frequently continued by the court for one reason or another, and we do not want you to waste a trip downtown.