We reveal top tips for getting it right, and bust a few myths along the way.
Winning the case isn’t your job
The first thing to do is get yourself into the right frame of mind, which is accepting that you and the evidence you give amount to only a fraction of the overall case. Once you accept that winning or losing doesn’t necessarily rest solely on your performance on the witness stand, the whole process can seem much less daunting. It is the job of your counsel (the barrister or solicitor representing you) to win the case. Your role as a witness is simply to tell the truth, the whole truth and nothing but the truth (we’ll talk about what that means in a bit).
Your lawyer works for you
The second thing to understand is your counsel is employed by you. Make sure they keep you informed about everything they intend to do, and ask as many questions as you like. That said, when it comes to giving evidence, your counsel isn’t there to tell you exactly what to say. The truth must come from you.
Your witness statement is your best friend
Your solicitor will encourage you to spend a great deal of time on your written witness statement, and you’ll be glad of having done so when you give evidence. The objective of the witness statement is to present all the relevant facts in a clear and logical fashion. Writing it carefully gives you a chance to think about the key events of the case, and address any concerns early on. The better prepared and more comprehensive it is, the less surprises the opposing counsel can spring on you.
Read the witness statement over and over
Once complete, make sure you are extremely familiar with everything the witness statement contains. In the past witnesses used to have to read their statements out loud. This rarely happens now, but, just in case you are, you will sound more credible if you know the statement well. It also reduces the risk of you providing an alternative account of events when answering a question.
Telling the truth
Okay, so you’re on the stand and have accepted the oath to tell the truth, the whole truth and nothing but the truth. Practically speaking, this means only saying the things you know for fact. This is where your witness statement homework really helps out. Remain calm when answering questions, and stick to the information you provided in writing. Opposing counsel thrive on getting you to reveal previously undisclosed facts, or encouraging you to give a slightly different account of key events. They may also ask you to speculate on whether a particular event did or didn’t occur. Remember that you’re the one that knows the facts, and the person asking all those tough questions only knows what their client told them.
Can’t remember something? Make that clear
You aren’t going to be expected to remember every detail of every event, even though you may be asked about them. If you don’t remember something, make that clear and answer in terms of what you tend to do in similar situations.
Memory gaps can make things worse
Sometimes we can be tempted to conveniently forget things we don’t want others to find out. However, judges and lawyers know that the human mind tends to record the more significant details of a situation with greater clarity, so ‘forgetting’ a key event may damage your overall credibility. Honesty is the best policy.
No one expects you to be perfect
Often, we fear revealing things we are ashamed of, but the court or tribunal doesn’t expect you to be incapable of mistakes. They want to know that you are a reasonable person who acted in a reasonable manner, and if you did something wrong it’s better to take responsibility for your actions. Being open and honest gives you credibility. It also means that instead of spending time cross-examining you to get the answer he or she wants (drawing more attention to the issue), opposing counsel will need to move onto the next issue. If you try to avoid admitting you wrong a skilled opponent will continue questioning you until the truth comes out, and your reluctance to own up to shortcomings in the first place can paint you as an unreasonable person or, worse, damage your credibility. Stick to the facts of your witness statement and it’s hard to go wrong.
Answering a closed question
Opposing counsel may also try to corner you in a ‘yes or no’ question, which limits your ability to explain an action you took (or didn’t take). In this situation, the worst response is to answer the question you feel you should have been asked (or would like to have been asked) instead. A better course of action is to say “The answer is no, but that is not a complete answer. There are other things you have to know in order to be able to understand it.” If the opposing counsel doesn’t allow you to expand, your own counsel (or the judge) will intervene if they feel it is valuable.
Deciding what is ‘reasonable’
Watch out for opposing counsel using a common tactic of attempting to get you to admit that a course of action other than the one you took was reasonable. For example, it may be put to you that it would have been reasonable to allow the employee another opportunity to attend a meeting. This could be the case, but there may have been several courses of action that would have been reasonable. In this scenario you can say, “Yes, another meeting may have been reasonable, but I believe the three opportunities we had already given him to attend were reasonable”.
Ask for time to read the documents
Opposing counsel may also try to pose an impossible memory test, such as asking, “This isn’t mentioned anywhere in the minutes is it?” Never simply agree because you worry about coming across as unprepared. Unless you are completely sure of the answer, you should insist on being taken to the relevant document and given a moment to it.
Don’t try to outsmart opposing counsel
Most people are nervous about giving evidence, but a far greater sin is to be overly confident. This can cause witnesses to fall into the trap of trying to beat opposing counsel at their own game, particularly if the questions seem rude or snide. This is a timely moment to remind yourself that this person asks questions for a living, and is likely to have many strategies for making you look foolish, or even to damage your credibility, if provoked.
Don’t expect your lawyer to object
Lawyers on television have a habit of shouting ‘Objection’ whenever the opposing counsel asks the witness a tough question. In truth, your counsel wants to object as little as possible because it can look like you have something to hide. However tough the question, answer it, sticking to the facts of your witness statement.
Don’t be a broken record
Even though I keep repeating ‘stick to the facts of your witness statement’, repetition isn’t the best course of action for witnesses giving evidence. Simply repeating the same sentences over and over again no matter what the question is can damage credibility. Answer the questions you are being asked, and leave speeches to your legal representative.
It may be hard to believe, but giving evidence can be a satisfying experience. However, even if you feel this is one of the worst moments of your life, it won’t last long. Just focus on calmly answering the questions, and more than likely the opposing counsel will eventually decide to try their luck with the next witness.