Sotos LLP’s top tips on how to be a prepared witness

If you are involved in a lawsuit there is a good chance that, at some point, you will be questioned by the other side.  This could happen as part of examinations for discovery or cross-examinations on an affidavit.  You might also be called as a witness at trial.

These “Top Tips” will help you to prepare for these examinations so that you can effectively fulfill your important role as a witness.

1. Tell the truth

• At the beginning of the examination you will be asked to swear or make a solemn affirmation that you will tell the truth when you answer questions.
• Telling the truth is extremely important. False information risks undermining your credibility. It also may come back to “haunt” you later on in the lawsuit.

2. What to wear, your demeanor

• An examination is an opportunity for you to practice giving oral testimony. The impression you convey at the examination will greatly influence the opposing lawyer’s assessment of how you will perform as a witness. Accordingly, it is important to prepare for the examination and to create a good impression.
• Dress in the same way you would for trial (a business suit) and conduct yourself as you would in front of a judge. Be solemn, professional and unemotional. Don’t make jokes. Maintain eye contact with the opposing counsel when answering a question.
• Do not try to avoid difficult questions or topics. If you have concerns about portions of your testimony, discuss these with your lawyer before the examination.
• Stay calm. Losing your temper will not help the accuracy of your answers and it may cause you to say things which you have not carefully considered.
• Don’t bring any notes with you. You will not be allowed to refer to any notes during the examination. However, don’t forget that you can review documents before answering questions about them.

3. Keep your guard up

• The other lawyer may try to “throw you off” or cause you to lose focus. They may try to make you angry or intimidate you.
• Alternatively, the other lawyer may be really friendly with you and try to make you believe that he or she is your friend.
• No matter what strategy the opposing lawyer uses, remember: opposing counsel is not your friend. Assume that opposing counsel knows everything and are very thoroughly prepared. Opposing counsel is there representing the interests of the adverse party. He or she is not there to help you with your case.
• No matter what approach opposing counsel takes, always be on your guard.

4. Make sure you understand the question before you answer

• If you don’t understand the question, or don’t know what the opposing lawyer is asking, say “I don’t understand the question”. Make sure you understand the question before you provide your answer.

5. Answer only the question asked

• Just answer what is asked – no more, no less.
• Often, people will volunteer additional information that was not asked in the question. Don’t infer one question from another. For example:

Q: “Did you watch the hockey game last night?” A: (You may be tempted to answer) “No, I went to bed early.”

Q: “Does your mother live in Canada?” A: (You may be tempted to answer) “No, she lives overseas.”

• However, the question asked calls for a “yes” or “no” answer, only. The other lawyer is not asking you what you did instead of watching the game. The other lawyer is not asking you where your mother lives, he or she is only asking if she lives in Canada. Don’t volunteer additional information that the opposing lawyer didn’t ask for.

6. Don’t guess at answers

• If you are unsure about something, say so. It is very important that you do not guess at what you think the answer might be. There is nothing wrong with saying “I don’t recall at this time” or “I don’t know”.

7. Pause before answering

• Take your time – pause before answering a question. Remember, the “pause” does not show up on the transcript.
• If you get into the habit of pausing, your pause will not be a signal to the other side if you are finding the question difficult.
• Don’t let silence trouble you. The opposing lawyer may pause after you answer a question, inviting you to provide more information. Don’t start talking again to fill the silence. If you’re done answering, stop talking and just wait for the next question.

8. Review documents before answering questions about them

• If you are asked a question about a document, take a moment and review the document before you answer the question.
• Before the examination, you should review the documents at least twice: first, you should review the documents a few weeks before the examination. If, at that time, you have any questions about what is contained in the documents, talk to your lawyer as soon as possible. Second, you should review the documents a few days before the examination. You want to make sure the documents are fresh in your mind before you go to the examination.

9. Lock-in questions (Always, Never, Every, Only, etc.)

• Be careful of “lock-in” questions where opposing counsel tries to get you to agree that you always did something, that you never did something else or that you do or don’t do something every time. For example:

Q: “You lock your car every time you get out of it?”

Q: “You never spoke to Bob about the contract?”

• Lock-in questions can also come up in the context of lists. For example:

Q: “Tell me the all reasons you did X.” A: “The reasons I did X are A, B, C.” Q: “So, you have now told me all of the reasons you did X?” (This is a lock-in question. If you say yes, you will not be able to offer additional reasons at trial should they occur to you.)

• Unless you’re 100% sure that you always/never do a particular thing, it’s best to qualify your answer. For example:

A: “My practice is to always lock the car when I get out of it. But I can’t remember on that specific day if I actually did lock the car when I got out of it.”

A: “At this time I can’t remember ever speaking to Bob about the contract.”

A: “I’ve told you all the reasons that I did X that I can currently recall.”

10. Questions asking you to agree or disagree with something

• If the other lawyer asks you to agree or disagree with a statement, be very careful. There is nothing wrong with agreeing or disagreeing with a statement if you agree or disagree with every part of that statement. However, if you don’t agree with the entire statement you need to make that clear. There’s nothing wrong with clarifying your answer when you respond. For example:

Q: “You’d agree with me that the letter wasn’t delivered until March 15?”

A: “Yes, I would agree that the letter wasn’t delivered until March 15 but there was a postal strike between the time I mailed the letter on March 1 and the time it was delivered on March 15. The strike caused the letter to be delivered late.”

11. Questions that contain assumptions

• Sometimes questions have incorrect assumptions built right into the question. If you don’t agree with the language in the question, make sure you clarify that in your answer. For example:

Q: “When did you destroy those documents?” A: “I discarded those documents in accordance with our business records policy on…”

Q: “When did you abandon the business?” A: “I stopped operating the business on February 22.”

• These types of questions can come up most often in yes/no questions. If you agree with all the language is the question, then just answer yes or no. However, if you don’t agree with all the language in the question, don’t give a yes or no answer. Don’t forget you can qualify your answer when you give it. For example:

Q: “So you only did that job at that store for one week?” A: “Yes, but I had been doing the exact same job at another store for 20 years prior.”

12. Undertakings/refusals

• If your lawyer refuses the question, or says “don’t answer that”, then don’t say anything else until the opposing lawyer asks the next question.
• If the other lawyer asking for an “undertaking” or asks you to provide information after the discovery, let your lawyer respond to that question.