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How To Testify At Trial (Part 2)

How To Answer Questions At Trial

So, you’ve identified what type of witness you are and you know you want to be right in the middle, so now what? What do you do next when you are on the stand and answering questions?  First let’s break down the two different ways you’ll be questioned:

Direct Examination

First is direct examination, this is where you are asked questions for the first time, usually by your lawyer.  This is the easier of the two type of questioning, where you get to give longer answers and you’ve prepared for some time with your lawyer on how to answer the questions.  A few examples might be simple lines like “ Can you tell the court what you saw?”  or “What did you do when you saw the child doing that?” very nice, open ended questions.

I like to think of this as a nice chat with the witness with a dude in a robe listening.  Several sentence answers, very open ended questions and generally easy to answer.  Re-Direct is also possible, but it is just being asked questions again after the cross-examination.

Cross Examination

Cross examination is what you expect to see in the movies, full of leading questions usually confrontational and often can be very aggressive questioning with lines that start out  “Isn’t it true…” or “ You did X…” instead of the open ended non-leading questions you see in Direct Examination.

Those are really the only two types of questioning that occur in court, with the exception re-direct, re-cross which is just a way to come back and answer questions again.

Below is a list of some of the basic tips that really are applicable to both direct-examination and cross-examination.

Understand the Question

Be sure you understand the question, I know it sounds basic but when you are asked “Sir, do you know what time it?” The answer is not “Umm…yeah about 11:30”.  That’s not answering the question, that is giving too much information.  The proper answer to the above question would be yes..or no.  Nothing more.  Be sure to understand the question.

On the same note, if you don’t understand the question, you say “I’m sorry I don’t understand the question”  Don’t ask that it be repeated, because that will just get you the exact question that is confusing you to begin with.  Also, if the question is confusing don’t offer or say “Did you mean X or Y?”  because the lawyer probably meant X, but now wants to hear about Y.

The reason this Understand the Question is first is that if you don’t understand the question no matter what else you say it will end poorly.

Take a moment, collect your thoughts and answer the question:

Take a moment, take a deep breath and answer the question.  Don’t just start rambling on and end on a confused, unsure note.  Think about your answer then say it!

This isn’t a  jury trial, you have time to take a moment, a moment though, not 10 seconds, and give your answer.  The Judge will expect you be nervous and will give you some leeway, but you really want it to feel like a conversation where you are just a bit slow in your answer, not like you’re hiding something.

Silence is not your enemy:

A common tactic used by skilled lawyers is to ask a question, then when the answer doesn’t come back the way they were hoping it would, the lawyer will pause, looking at the witness and wait…and wait…and wait.  What usually happens is the witness feel

uncomfortable and will start talking, usually giving more information or back-pedaling from the answer they just gave.

Don’t argue with the lawyer:

You can’t win an argument with the lawyer, you’ll come off looking angry, upset and generally arguing won’t get you what you are hoping it might.  I know you hate him or her and think what a jerk they are and you KNOW you can win the argument!

You can’t.  You won’t and you’ll upset the judge.  Divorce Lawyers get paid hundreds of dollars an hour to do one thing: Argue.  It would be like you going out and thinking you can play pro football because you played a little ball back in high school, how hard can it be?  I can promise you it won’t end the way you think it will, which is usually bad for you.

Don’t ask questions:

You, the witness, is the one being asked the questions.  It doesn’t go the other way, You don’t get to ask questions, it only causes confusion and often upsets the Judge.  Often times you want to say something like “why are you asking that?’ or “Do you want to know because…”  fair or not our system is base don you sitting in the witness box, sworn in and answering all the questions you are asked.  Just do your best to listen to the question and answer it directly.

Watch Your Lawyer For Cues:

While it’s not appropriate to have “codes and signals” often times if you look at the lawyer you’ll be able to watch their expression and see that the answers you are giving or how you are giving them are not the way you prepared and practiced them.

Remember, it’s not baseball and the catcher is sending signals, but common sense goes a long way here if you can keep an eye out for the reactions of your lawyer.

Stay Calm

Remember that  the lawyer isn’t out to get you, they don’t hate you and you shouldn’t hate them.  Do you hate the mechanic who tells you your transmission went out?  Of course not, that would be silly.  Your lawyer is simply doing his or her job and while the lawyer may not be on your side, it really isn’t
personal.  Getting mad at the lawyer or being a jerk really just backfires and makes you look like the unreasonable one (remember the secret to winning trials?)  So take the high road and stay calm.

These are the highlights on how to answer questions at trial.  Remember that they call it the practice of law, this means everyone has different thoughts and idea on how to best prepare and instruct witnesses, these are mine.  I’ve gone to the NITA trial school as well attending the ATLA trial seminars and these ideas are partially and partially borrowed, but over all I believe these work quite well.

Missed Part 1 on how to testify at trial?  go back and read it and you’ll be caught up!

Information obtained in mankatofamilylaw.com may contain knowledgeable content about Minnesota Family Law that may be considered beneficial to some; however, in no way should this website or its contents be considered legal advice. Mr. Kohlmeyer is a Minnesota licensed Attorney and cannot provide legal services or guidance to those outside of Minnesota. If you wish to retain Mr. Kohlmeyer as your Attorney in your Family Law matter, contact 507-205-9736.

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