The Winning Witness

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Partner at Fenner & Boles | Experience Matters

You have been asked to testify in a hearing, and it is important that you "put your best foot forward" to make your testimony as effective as possible.  I suggest you read my chapter about winning through effective testimony in my free book, The Wounded Worker: Inside the Pennsylvania Workers' Comp Maze. The following summarizes the general behavior of an effective witness:
    
        1.    Tell the truth.

        2.    Listen to the question.  If you do not "hear" the question, you cannot answer the question.  A witness should never answer a question if they do not know and understand what information is being asked of them.  Witnesses who answer a question other than that which they have been asked, look and sound like they do not know what they are talking about or, worse, like they are lying.

        3.    If you do not hear and understand the question, do not answer.  It is not your role to "divine" what it is that you are being asked.  Do not guess about what it is the question calls for, if you do not understand it.  But understand that if you do answer a question even if you did not hear it or understand it, it will be assumed that you intended the answer which you gave.

        4.    If you do not hear or understand the question, ask to have the question repeated or rephrased.
    
        5.    Remember that appearance is important.  As a witness, you should appear neat, presentable, and properly attired.  When conclusions are drawn about your testimony, they should be based on the content of your testimony, not on you hair style, clothing, or grooming habits.  Do not wear a lot of jewelry or expensive jewelry.  (A watch, a ring or two, necklace and earrings for women are acceptable).  Generally, witnesses should avoid any flamboyant or unusual clothing.  Male witnesses should ordinarily dress in a comfortable, conservative two or three piece suit.  Generally, a grey, brown or blue suit should be worn, with a white shirt.  Men should wear a tie, which is understated and matches you suit, dark socks and dark shoes.  Facial hair and head hair should be neatly trimmed, regardless of length. A female witness should ordinarily wear a dress or skirt.  Your attire should not be too "dressy," and it should be relatively conservative.  Color or patterns in clothing are acceptable as long as they are not loud.  Do not use too much makeup, perfume or hair spray.  Do not have your hair cut or styled in an unusual fashion.  Do not wear a lot of jewelry, or ostentatious jewelry.

        6.    It is important that you look and feel comfortable.  Regardless of what clothing you wear for your testimony or your personal grooming habits, it is important that your clothing and appearance are comfortable.  Tight shoes, tight clothes, etc., can contribute significantly to your uneasiness as a witness.

        7.    Always look at your questioner.  A witness who does not look at the person with whom they are speaking, conveys the impression of lacking candor.  If the judge or hearing officer asks you a question, respond to him\her directly.

        8.    Sit in a comfortable, straight posture when you testify.  If you are physically capable of doing so, you should attempt to sit up straight in the witness chair, without slouching, leaning, tilting backwards or forwards, or bracing yourself against any object (like a table, the witness stand, etc.). If your physical injuries interfere with your ability to maintain good posture, do not worry.  The workers' compensation judge will understand.  If, however, you feel the need to stand up during your testimony, you may do so, but it is best to request permission from the judge before you do so.  

        9.    Avoid nervous gestures.  As a witness, you should keep your hands in your lap, at your side, or on the arms of your chair.  Do not:  run your hands through your hair; place your hands about your face or chin; drum your fingers on the table or witness stand; fidget in your seat; play with papers or any other object while you testify; change your body posture often and repeatedly in your testimony; play with jewelry on your fingers or around  your neck.  You may feel anxious, but it is important to avoid movements that are nervous and distracting.

        10.    Speak up.  Whether you testimony is being recorded or not, say what you have to say in a clear even voice.  Do not mutter, mumble, or speak so quietly that people cannot hear you.  Never cover your mouth with your hands when you speak.

        11.    Do not lose you temper.  It is very important to remain in control of your testimony.  When a witness loses his or her poise and balance, they usually lose control over their testimony.  Be prepared for the fact that , on cross-examination, questions can be asked in a tone and/or manner that can seem curt, abrasive, or even insulting.  In addition, sometimes the subject of your testimony might concern issues which irritate you or that you find unpleasant.  Do not respond to your questioning, either in its substance or form, with angry or loud outbursts.

        12.    Do not look to anyone else to get guidance about how you should respond to a question.  Your attorney, friends, family or colleagues cannot answer questions for you, so do not look at them for assistance before you respond.  That behavior only gives the impression that you do not know the response, or that whatever response you give is "staged".

        13.    If you require a personal break for any reason during your testimony, do not hesitate to request one.  To the extent possible, of course, a witness should attend to personal needs before beginning their testimony.  But if, during the course of your testimony, you require a break, do not hesitate to address yourself to the judge (or other decision maker) and ask if you may take a break for personal reasons.

        14.    Unless requested by legal counsel, do not bring any papers or documents with you whatsoever regarding the matter on which you are testifying.  If you have documents (notes, pleading, letters papers, etc.) with you, you can be questioned about them.  Leave them home.  Of course, this does not apply to your list of medical bills, proof of payment, and wage information.  If you have not provided your attorney with this information previously, this information should be brought to the hearing.

        15.    Become familiar with what you are going to testify about, and what is expected of you as a witness.  Generally, a witness is most comfortable if they are aware of what their "role" is in a proceeding.  If you are unaware of your "role," in that you do not know what you are expected to testify about, ask you lawyer or representative to assist you in understanding the content and purpose of your testimony.

        16.    Do not "volunteer" information beyond the question which you have been asked.  On cross-examination, never ever volunteer information if you have not been asked a specific question which asks you to disclose that information.  On direct examination, know what your "role" is and the scope of the answers that your attorney/representative seeks from you, and give only those answers.

        17.    Do not argue or fight with a questioner.

        18.    Be courteous, polite and respectful at all times.  Address any person asking you questions in a proper and respectful tone, especially the judge or hearing officer.

        19.    Get a good night's sleep before your testimony and try to relax.  A comfortable and well-rested witness presents his/her testimony in the most effective way.  Before you testify, do the things that help you relax and be in control, whatever those things may be -- a good night's sleep, some exercises, a meal, etc.

        20.    Be prepared to testify.  Your comfort and poise as a witness often depend on how prepared you are to testify.  Think about your testimony, think through your testimony, and any documents that are related to your testimony so that you feel familiar with the questions that you may be asked.

        21.    If you have any questions about your testimony, never hesitate to ask your attorney or representative.  You would not be a witness if your testimony was not important to the hearing in which you have been asked to appear.  Never assume that you have any question that you cannot or should not ask your attorney or representative.  We know and understand that you will have questions and that getting the answers to your questions may help you be more comfortable.

        22.    Do not tailor your testimony to what you believe is good for your case.  The first rule to any witness, as set forth above, is to tell the truth.  If you are asked a straightforward question, you should give a straightforward reply.  

        23.    Finally, you can only testify as to what you know.  Do not try to do more.  Never "imagine," "suppose," or speculate or hypothesize in response to question that calls for you to state your knowledge on a particular topic.  If you do not know the answer to a question, do not say anything more than "I do not know."  If you do know the answer to the question, you should respond in plain, straightforward language that reflects only your knowledge.

These "standard" instructions obviously cannot anticipate every situation that might face you as a witness, but if you are truthful and candid in your testimony, and bear these simple guidelines in mind, your testimony will hopefully be an easy task for you.