So You’re Going to Be a Witness: Preparing for and Testifying at Trial

You have done your investigation, you have testified at a deposition, mediation has failed, and now you are going to trial. These tips may help succeed at trial, particularly in light of the challenges posed by remote testimony at a video trial or hearing necessitated by current COVID-19 conditions.

Preparation, Not Inspiration, Wins Trials

The side most prepared to tell its story in a simple, straightforward manner often wins at trial. There are a number of aspects to being prepared – know your subject matter, develop a simple theme, make sure you and your attorney are on the same page, avoid overreaching, anticipate where the other side is likely to attack and be thoroughly familiar with the processes and technology required to participate remotely by video conference.

1. Know Your Case

The best way to make a bad impression on the jury is to get on the stand and not know your case or what you have said before. At best, you look like a poor witness. Worse, you could be perceived as a liar.

Make sure you have reviewed, and are familiar with, the key facts and the documents and photos your side will use at trial. Details can be significant. Why is it that you are sure the damage occurred at a specific time? How do you know the facility that was damaged was, or was not, accurately marked? Where and when was this photo taken? What does it show?

Making a timeline of key events can be helpful. You can match the documents to the key events in the timeline and the points those documents illustrate.

Photos taken with cell phone cameras often contain metadata which include time and date. Comparing this data to information contained in other reports can assist in compiling an accurate timeline and provide a supporting narrative.

Talk with other witnesses. The collective memory of the group can help you remember what happened and help you avoid a confl ict with what another witness may say.

Review your prior testimony. Make sure your story at trial does not change from the one you told at your deposition. If it does, have a ready explanation.

2. Develop a Simple Theme for the Case

A critical mistake is making your case too complicated for the jury to understand. Develop a simple theme around the strongest points and repeat that theme throughout the trial.

One of the most effective examples I have seen is a case where an excavator damaged a line after failing to expose it by hand before attempting to cross it. The excavator claimed the ground was too hard to dig with hand tools. The truth was that it would not have been impossible to do so, just more time-consuming, and expensive. Throughout the trial, however, the excavator’s lawyer repeatedly referred the the ground as “impenetrable coral rock.” Repeating that theme consistently throughout the trial left an impression that was difficult to overcome.

3. Make Sure You and Your Attorney Are on the Same Page

Sit down with your attorney and go over the questions he will ask at trial. Memorizing all the questions and answers is not the goal. However, you want to make sure you give the answer he is expecting. Answering “no” to a question he expected you to answer “yes” to makes you both look unprepared and negatively impacts your, and your case’s, credibility with the jury.

Judges and jurors who have come of age in a digital world can become frustrated when technology does not work smoothly. Failure to be technologically prepare poses at least two risks. First, inability to follow the presentation, or breaks needed to correct technological or presentation issues can lead to the fact finder becoming bored and losing interest. Second, lack of a smooth technological presentation can affect the credibility of the witnesses and the entire case. Make sure both you and your attorney are familiar with, and adept at using, the presentation program that will be used.

4. Don’t Overreach

Tell your attorney beforehand if you are unsure about, or lack personal knowledge of, a point she anticipates proving through your testimony. Guessing or speculating about things which are beyond what you know leaves you open to having your credibility called into question on cross examination.

5. Walk a Mile in the Other Side’s Shoes

Knowing the weaknesses of your case can be as important as knowing its strengths. View the case from your opponent’s perspective. What will the other side try to highlight? What questions would you ask to exploit those weaknesses? Considering those issues before you testify gives you the opportunity to formulate responses rather than being caught by surprise in front of the jury.

How You Say it is as Important as What You Say

Your attorney already knows your case and is on your side. You want to engage the jury when testifying. You do this by talking to, and making eye contact with, the jury rather than the attorney. With remote testimony, this means looking straight at the camera rather than around the room or fumbling with notes or documents.

Juries and judges also tend to dislike witnesses who are disrespectful of the other party and their lawyer. Answer the other lawyer’s questions politely and sincerely rather than arguing or showing hostility or derision.

Finally, a smooth presentation is extremely important. Make sure that you and your attorney have gone over all documents and photos that will be used so you are prepared to coherently present them.

1. Be a teacher

You have worked in your business for years. You know and understand it, and this case. The judge and jurors know nothing about your case and likely little about your business. Your job is to teach them about your business and the facts of this case in a way they can understand.

2. Use pictures and drawings

While it may be a cliché, “a picture is worth a thousand words.” It is much easier to show the judge or jury a picture of utility locate marks or a diagram of the “tolerance zone” than it is to explain it with words. Use of presentation software to add annotations or diagrams to the photographs as the testimony progresses can be an effective tool to illustrate that testimony.

3. Use simple language

The utility and excavating industry is filled with technical terms and acronyms. If the jury does not understand your testimony, it is difficult for them to find in your favor. Consider the best ways to explain your business and the facts of your case in plain language that jurors can understand rather than technical terms and acronyms which, while simple to you, likely mean nothing to the jurors.

CONCLUSION

Making sure you know your case, developing a simple theme, and anticipating how the other side will attack the weaknesses in your case will ensure you are prepared to testify at trial. Speaking directly to the judge or jury, respectfully and in plain language and, if the trial will be done remotely, being able to effectively use video presentation technology, will help you follow through on that preparation, and hopefully win your case.

James Proszek, is a shareholder in the Tulsa, Oklahoma office of the law firm of Hall, Estill. Mr. Proszek is a trial attorney with over 30 years of experience. He can be reached at jproszek@hallestill.com.

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