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 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.
Avoid Using “Watergate” Phrases
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 Volunteer Information
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.
Do Not Ignore Documentation & Mail Notifications
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.