Having fought about a thousand trials when I practiced as a barrister, I know what it takes to be a good witness. This is neither secret knowledge nor actual legal advice but it is inside knowledge which I’m sharing. People who frequently give evidence in court, whether they be expert witnesses, police officers or business people learn this knowledge for themselves but the vast majority of people who appear as witnesses do so for the first time. They lack a proper understanding of how they will be assessed as witnesses. Consequently, many of them do themselves much injustice. Their presentation of their evidence is prejudiced by popular culture. Films, TV shows, literature and the like almost never represents court proceedings properly.
This advice is specific to the civil courts in England and Wales. Criminal courts are a different matter. They are judged either by magistrates jaundiced by constantly facing the worst people in our society or by juries. The best presentation techniques for criminal courts differ considerably from what I set out below.
The Courtroom Belongs To The Judge
When you appear in court it isn’t just some formally laid out room with a slightly stuffy atmosphere. It is the workplace of the Judge who hears the case. It is his or her office, although they may more frequently think of it as their coalface. Their life is not governed by the same considerations that most of us struggle with. Although not short of money, their status is not dictated by wealth but by their efficiency in judging cases. The have a list of cases to work through and wish to get through that list in good time.
Using the language of the court room, you appear in their court to assist the judge who has to decide the case. In the civil trial courts in England & Wales, there is only ever one judge who hears the case. Realising your position in the Judge’s court room will be the first step to appearing as a good witness. Everything you do must be deferential towards the judge. If s/he speaks, you shut up. If s/he says they are not interested in a certain answer, you shut up. You are not going to impress judges by arguing with them. An advocate might but a witness will not. For this reason, if you are both your own witness and your own advocate, you are likely to struggle with the division between the roles.
You must not allow yourself to be fooled into taking anything the judge says personally. They are highly trained and experienced. Despite your life experiences, they are well used to not making first impressions, to hearing all sorts of stories and deciding complicated cases without allowing themselves to be confused or put off by an inexperienced witness. Of course, if you go out of your way to wind up a judge, you will likely come off worse. So long as you remember your place in the court room this should not happen.
Be solemn, Be Smart
Dress as you would do for a funeral. I’m not talking about one of those funerals where there is lots of whooping, singing and laughter. I’m talking about an old school presbyterian funeral. Dress in your smartest clothes. If you have a dark suit, wear it. If you don’t and can afford one, buy one. If you cannot afford a suit, dress most demurely. If you are a man, wear a tie. Do your top button up. The aim here is to demonstrate that you fully respect the court. Your clothing speaks volumes about the level of respect you intend to pay. The judge will be used to seeing well dressed people in suits. Whilst s/he may not adversely judge those who do not attend them in sombre attire, doing so will go a long way in terms of your body language to communicate that you intend to respect the proceedings fully.
Behave as you would do at a funeral. Do not smile. Do not laugh. Do not crack jokes. If the judge smiles at you, you might permit yourself a polite smile in reply but do not overdo it. The witnesses which look overly relaxed tend to perform badly in judicial eyes. They look like they are not taking the proceedings seriously. An advocate may smile, laugh a little a judicial remark and, very occasionally crack a joke themselves but you cannot. Not everyone is equal in a court room. All the witnesses are entitled to be treated with the same respect but the relationships between them and the other players in the ‘theatre of the court’ is strictly hierarchical, with the judge at the top of the tree. The trick is to play your role properly and not assume that you have any form of control over the proceedings. A witness can only control their own evidence. When you have finished giving your evidence, continue to behave as you would do at a funeral.
Your evidence falls into two parts. There is the evidence which you gave in your written statement. This is called your evidence in chief. Then there is the answers you give to questions. When your opponent’s advocate asks you questions and you answer, this is called cross examination. Your answers in the context of the questions is your evidence in cross. If advocate of the party you were called to be a witness for asks you questions this forms part of your evidence in chief. If something entirely new arises in your cross-examination, which wasn’t mentioned in your evidence in chief the advocate for the party you appear for may conduct a re-examination. This is unpopular with advocates but sometimes necessary.
Having already made your statement, you must read through carefully and be familiar with it before the trial. However, you do not have to learn it by rote. You are not being given a memory test. You will not be asked to recall details of it blind. It will be on the witness stand in front of you, with all the other documentary evidence in the case.
The most important thing to realise is that your evidence under cross-examination is regarded as couplets of questions and answers. Most people who arrive in court for the first time completely fail to grasp this. Your answers can only be taken in the context of the question being asked. Your answers do not stand alone. They hang on the questions you were asked. In fact this is true not just for questions asked by way of cross-examination but for any questions you are asked. Assuming you want to be a good witness, you will need to prepare yourself for answering questions so that both the judge and the advocates can get a proper note of both the questions and the answers. They do not use shorthand because if some mishap befell them before the trial finished, no-one else would be able to read the shorthand. They write long hand.
Tell The Truth
Never lie. You are in court to tell the truth, the whole truth and nothing but the truth. That is why you are appearing as a witness. Aside from the political and philosophical arguments about whether being publicly deceitful undermines civil society (it does, regardless of the integrity of the court system), the fact is that you are not going to be a good witness if you lie. Most likely you will get caught out. In criminal courts experienced police officers sometimes lie because they think that they know the ropes and can get away with it. Sometimes they pull it off. Other times they get uncovered. Believe me, in my brief criminal practice I was surprised at how remarkably easy it was to prove that some police officers could not be trusted.
In civil courts many people think that they can be similarly clever. Certainly if you are appearing in court for the first time with the intention of lying, you must be fairly stupid because, in effect, you have convinced yourself that you are more skilled than the all the advocates and the judge put together. Most advocates are barristers. The few solicitors which have won rights of audience in the higher courts are absolutely excellent. After just a few months of practice, it becomes relatively easy for a trained advocate to uncover lying. After a couple of years I found I could do with ease. When I realised that a witness was lying I relaxed because it made my working life so much easier; often at that point I began to think about something disconnected with the trial in hand because my victory was already in the bag. I just trotted out one of any number of set piece traps for the witness to fall into. Courtroom virgin or not, they invariably fell into them and this made my working life very much easier.
Take Your Time
Whilst the interplay between the various ‘actors’ in the courtroom may appear theatrical, this is a performance which only happens once. As a rule, you do not get to have another crack at giving your evidence. If you bluster through your evidence quickly and fail to do yourself justice, tough. Plenty witnesses are so nervous that they foul up their evidence. Immediately that cross-examination begins they are overwhelmed by being the centre of attention and some part of their brain orders them to end the process as quickly as possible. Consequently they mess up their evidence and leave the witness stand at the earliest opportunity, sometimes utterly freaked out, often in tears and always befuddled. This is the wrong approach.
You are entitled to be heard properly. You have been called as a witness because your evidence is pertinent to the issues being tried. If you want the judge to assess your evidence properly, you must give him or her the chance to do that. Hard though it may be to imagine, put yourself in the judicial shoes. Imagine what it must be like to go to work every day and hear flustered people talk very fast whilst they creak to a halt in fear. If you had to weigh their evidence, that sort of behaviour would not help your working day.
The first trick is to take a sip of water from the cup on the witness stand before you begin. People unaccustomed to public speaking usually find that their throat dries up unexpectedly, which in itself induces a feeling of discomfort, which often in turn triggers unconscious reactions which affect what you say. You can take control of this biological chain of events by drinking a little water first. The judge won’t think anything of it. They are well used to people being completely unfamiliar with the proceedings. If, for some reason, the traditional cup of water is not there, ask for some water before you start. There’s no harm in telling the judge that you are a little nervous and wish to wet your throat before you start. Almost every witness is nervous. Do not allow popular culture to prejudice your view of declaring nerves. I have never seen a witness come off badly because they made this candid confession to a judge.
The second trick is to get used to the sound of your voice in the courtroom as soon as you can. That way, you’ll speed up the process of becoming accustomed to being a witness. If the judge permits it, the advocate who introduced your evidence in chief will ask a couple of warm up questions. Usually either they or the judge will ask you whether you have read through your witness statement first. Before that there will be the oath or affirmation (although sometimes this is dispensed with in small claims track hearings in county courts). Use these purely procedural moments as opportunities to remember that your voice is going to get heard and it is a beautiful voice which you can be proud of.
The third trick is to listen very carefully to each question asked, regardless of who asks it, count to three in your head, repeat the question to yourself completely in your head and only then answer the question. This slows down the rhythm of any questioning process. It allows advocates and judges to write down both the question and the answer in good time. It prevents an advocate cross-examining you take control of the pace of the cross-examination. The advocate cross-examining you wants to control your evidence. It is perfectly acceptable for you to take control of your own evidence in terms of the time it takes you to speak. I used to love it when a witness rushed to speak. The overly eager ones are so much easier to manage. Although popular culture misinforms as to trial dynamics, there is a certain unavoidable truth in that well described situation where someone has been confidently answering every question and then suddenly pauses to think. This is always presented as being a clear sign of some sort of culpability. In reality, if you face a series of easy questions and then one that makes you pause for thought, you are very likely to do just that. However, your brain will be clouded by the culture you are bombarded with and you will most probably become unsettled if your answering suddenly changes pace like this. By employing the third trick right from the start of your evidence, you will avoid traps designed to unsettle you like this. If, despite this, there is still something which really you really need to think hard about, just tell the judge you need a moment to consider the question and explain why.
You are being asked about your own personal recollection, the matters in your own knowledge or your own opinion. If you do not know the answer to a question, do not guess. This almost always comes undone. It is ridiculously easy to lose sight of the fact that your evidence is only one part of the case in hand. Even in those cases where you are the sole witness, guessing is unlikely to help you be a good witness. As with lying, guessing is very easy for a master of the dark crafts to identify. Do not imagine that you will get the better of a courtroom hack. If you do not know something, say that you do not know.
Listening is a skill many of us think we have down pat when in fact we are rubbish at it. Being a good listener is perceived as understanding the emotional content of someone’s woes more than it is hearing what they actually say. In court, although judges will definitely hear the emotional content, they do hear rather a lot of it and are more directly interested in establishing the facts of a case. Therefore they tend to concentrate on the actual words being used. They listen carefully to the question being asked and to the answer given. Theirs is a rarefied intellectual world and they are usually, like me perhaps, somewhat cold on the emotional front and a bit pedantic about plain factual reportage.
No matter how good you think you are at listening, you will need to practice more before your big day in court. A good technique is to listen to BBC Radio 4′s weekdays Today programme between 7:00pm and 8:00pm or their PM programme at 5:00pm. These days, with the beeb following suit with our other broadcasters in dumbing down as much content as possible, their other shows are no longer up to scratch. Even these shows are pale imitations of what they were previously. Don’t kid yourself that other radio stations or TV shows come close for the exercise I am about to describe, no matter how much you hero worship Jeremy Paxman on Newsnight or Nick Ferrari on LBC. The exercise is remarkably simple and goes like this:
- whatever your political views are, put them to one side
- listen to every question asked
- listen to the answer given
- score each and every answer out of ten for how well you think they answered the question being asked
Do not play this game by considering whether the answers were good or not. Whether they pleased you or not is irrelevant for your purpose. Your purpose is to wake your brain up and improve your listening skills. A high scoring answer would be one which directly addressed the question being asked. A low scoring answer would be one which ignored the question being asked. I used to say to my clients that much as though I loathed the man’s politics, Jack Straw always scored high in this game because his barristerial training led him to tackle the questions head on. He wasn’t a fudger. However, these days I think he has come off the boil. Play this game every day. The longer you play it, the better a courtroom listener you will become. You might pick up some useful political knowledge along the way too, assuming the BBC manages to keep any form of quality control intact.
Answer Only The Question Asked
I feel like my old school teachers, telling people this. How many times did they urge me to just read the question on the examination paper and answer it? How many times did I ignore this advice and plough on, writing crap about stuff the question didn’t relate to? Luckily for me, I sorted out that problem before I left school. I was allowed to have plenty of practice but you are mostly probably heading into a completely unfamiliar experience. Unfamiliar experiences are always the most nerve racking – remember your first kiss? Your first job interview? Your first wedding day?
When nerve racked it is easy to lose the plot. Generally, witnesses don’t really listen to the question they are being asked. They are so sure of what they want to say that they are just waiting for their turn to talk. When the question finishes, they are dimly aware of the import of the question itself and just continue to babble. This makes them bad witnesses. Following the advice I gave above about taking your time will go a long way to helping you overcome the nerves problem. It will also give you the time necessary to listen to the question. Hopefully you will have had a chance to practice your listening too. Thus armed, you should now be in a position to hear the question that that you were actually asked. Answer it.
Do not give an answer to anything which you were not asked. Witnesses often second guess the next question and try to box clever. This doesn’t work. Any judge will spot this a mile off and so will almost all advocates. In other words, do not imagine that you will be able to improve your evidence by getting ahead of the questioner. Similarly, do not trouble yourself with what you infer is the implication of a question. Just answer the question and wait for the next one.
A very common mistake is to imagine that the question is less important than the motivation of the questioner. Thus, witnesses regularly treat questions from their own advocate favourably, questions from the opposing advocate harshly and questions from the judge according the immediate impression that they have formed of the judge’s view of the case as a whole. This is a dreadful error and is another way of not answering the questions actually being asked. Treat every question in the same way, regardless of who asks it. Sometimes a judge will sense that a witness has become hostile to the opposing advocate and will step in, to take the heat out of the situation. Often judicial questions illicit information which an advocate cannot obtain because the witness is seduced by the judge’s friendly manner. The typical result of this situation is that the witness’s evidence is given less weight by the judge.
How To Deal With Complicated Questions
Sometimes you will be asked a question which you don’t understand. It is fine to say that you do not understand the question. If it is a question which it is obvious that you should understand, this will weaken your evidence, obviously. However, if the question is truly difficult for you to understand, this is fine. The question will be asked in a different way. If the advocate cannot manage to rephrase the question appropriately, the judge may take over the questioning. All s/he cares about is that the trial is properly conducted. Judges do not cross-examine witnesses but they will see to it that questions which need to be answered get answered.
Long And Short Answers
Anyone who tells you to only give short answers is short on wisdom. The length of the answer you must give depends on the question you are asked. If you feel that your answer needs to be long, give it long. If you feel that the question is best answer short, give a short answer.
How To Answer And Give Reasons
Sometimes you will be asked a question which requires an explanation. Usually witnesses start with the reasoning before they turn to the answer. This is confusing to listen to and if a witness often does this, typically advocates cut them off before they have completed their answer, with the result that they have failed to answer the question properly. It is far better to give the actual answer first and then give the explanation. If the judge is interested in the explanation, he will let you give it.
How To Avoid Intimidation
An advocate cross-examining you will wish to control you. Some of them can be very intimidating. In court, I was very intimidating. Any barrister who cut his teeth on criminal work and then moved onto civil work, as I did, is likely to know how to really fight a case. Nevertheless, witnesses have a right to be treated courteously. A judge will immediately step in if he thinks that a witness is being treated discourteously. This happened to me on a few occasions, soon after I first started practising in civil litigation.
The trick here is to trust the judge. If you are being treated roughly by an advocate, the judge will put a stop to that treatment. If you are not, proceedings will continue. There is no need for you to raise a complaint. Because you are unfamiliar with the art of advocacy, you may feel intimidated by the process itself. This is not the same thing at all. You have to get a grip on yourself. However, if you feel that you are prevented from completing the answer to a question by the advocate cross-examining you, you can and probably should ask the judge if you can complete the answer. If the judge says yes, then you have taken charge of your evidence once more. If the judge says no, more than likely the question was irrelevant to the issues in the case which the judge is most concerned about and, therefore, the answer will be irrelevant too.
How To Deal With Long Winded Speech Type Questions
If you are sure that you have not really been asked a question, do not answer. Your job as a witness is to present your evidence in chief and answer questions. If you are faced with an advocate who makes a point but doesn’t ask a question, there is nothing for you to answer. This is a very common problem in cases where the advocate is the person fighting the case for themselves. They are called litigants in person. They usually lack the craft of questioning. In this situation, both the judge and the professional advocate have a duty to see that the litigant in person’s case is properly put. In order to put a case, questions must be put to opposing witnesses which relate to the points which will be made against them in the closing speech. Whilst the judge and professional advocates have a duty to ensure that the litigant in person’s case is properly put, they cannot prosecute the case on behalf of the litigant in person.
Address Your Answers To The Judge
Most of us consider it rude to not reply and make eye contact with the person addressing us. In court, however, a different social etiquette applies. Your answers are to the court, not to the advocate. Whenever possible, give your answer to the judge hearing the case. S/he may or may not be looking at you but it is to you they are listening.
Make No Undeclared Assumptions
Far too many witnesses base their answers on undeclared assumptions. We could not get through life without making lots of assumptions. We assume motorists will behave in a certain way and cross the road accordingly. We assume that the clock in our home tells the right time because it always has. We assume that something we didn’t see go wrong, did not go wrong.
As in life, so it is on the witness stand. It would be practically impossible to state every single instance of your evidence which rests on assumptions. There is no need to get philosophical; that is just likely to wind up the judge, whose court you are trying to respect. At the same time, you must be careful of making big undeclared assumptions. I have fought a large number of road traffic accident trials. Often a motorist had not actually seen the car that they claimed had crashed into them. They made assumptions about the behaviour of its driver based on their own belief that they had done nothing wrong. They weren’t lying to the court but they certainly were not telling the truth either. If you are asked a question to which your answer relies firmly on an assumption, then explain your assumption. Some of these driver claimants I have referenced would explain that they ‘knew’ where the other driver had gone wrong, despite not having seen them, because of the limited options available. Sometimes this turned out to be good, strong evidence, sometimes not. It depended upon the assumption being made and the facts of the case. However, undeclared assumptions create space for advocates to make hay with.
You have to remember that the judge does not live in your head. Vague answers might be interpreted differently from what you meant. If you are asked how far something was away from you replying, “not far”, is unhelpful. You need to say exactly how far away it is. You do not need to have a perfect grasp of any one measuring system. If you do not know how far thirty yards really is, use a measurement familiar to you rather than trotting out what you vaguely believe. Judges do not care about your ability to use any one measure, they care about what you mean to say. Consequently, in road traffic accident trials very often they will encourage witnesses to describe distances in terms of car lengths. Sometimes they will ask people to use the courtroom itself as a guide. If you give a precise measure but in fact have no idea what it really means, the judge will assume that you did. Be precise and be sure of what you mean.
Learn Some Basic Civil Procedure
Properly understanding your role as a witness in a civil court in England and Wales is dependent upon some basic knowledge of civil procedure. This is far too big a topic to detail in this post and somewhat outside its scope but that doesn’t stop you learning it for yourself.
The crucial points to realise are that civil litigation is decided on the balance of the probabilities and that each party has a burden of proof to establish what they claim. As a witness you are not fighting a case, even if it is your own case. Your role is restricted to assisting the judge weight the evidence. S/he will assess your credibility by reference to whether you have been consistent with yourself, with other witnesses and with any documentary evidence. Judges sometimes look at the likelihood of the evidence given by witnesses without reference to anything else. For example, I had a motorist once claim that his opponent had been driving at Formula One speeds on a twisty country lane whilst overtaking. Given the lane in question was particularly tortuous to negotiate and the fact that the court had sight of excellent photographs and plans of it, this was manifestly untrue. It simply could not be so. Furthermore, the overtaker’s car wasn’t capable of driving at such speeds. Consequently the claimant’s credibility was severely undermined.
Coming Up To Proof
In the language of a closing speech, judges and advocates sometimes talk about whether a witness came up to proof. More commonly this conversation is restricted to their robing rooms and chambers but the concept is still worth discussing. The idea is that a witness statement is what the witness would say if they passed through the test of cross-examination perfectly. Their statement is their proof of evidence, to use the jargon again. For almost every witness, it is practically impossible to come up to proof perfectly. The mere business of being asked questions casts some doubt, however slight. I have only rarely seen a witness come up to proof 100%, excepting those cases where litigants in person didn’t manage to ask any relevant questions.
Witnesses instinctively know when they are failing to come up to proof. Sometimes this is startlingly obvious, as it was in a case I fought in an employment tribunal once – they are another form of civil litigation, albeit with three judges – where an employer claimed in his witness statement that he had given several weeks notice to an employee but under cross-examination by yours truly he conceded that he had shouted him out of the building without any warning. A moment later he realised that he had undone his own case and threw the towel in there and then with the words, “I’ve lost, haven’t I?”. That was one question no-one needed to answer. Most of the time the reversal of fortune or, more commonly, the slight weakening of the evidence, is much more subtle but nevertheless the witness senses that all is not going the way they wished it to. Sadly, many witnesses at this point attempt to rectify the situation by going on the offensive in subsequent answers. Outside the witness stand, it becomes easy to see why suddenly changing tactics like this plays very badly with judges. Any tactics at all will fare badly. We’ve all seen them all before. The problem stems from witnesses being naive. They foolishly think they will shine like the sun in the witness stand and maintain their statements completely. On the other hand, judges and advocates know that virtually no-one comes up to proof completely so they don’t make the same assessment of evidence that virgin witnesses do. If you are giving evidence and you find yourself tempted by your own failure to come up to proof to change the way you give your evidence, you must resist this urge. You must recognise that this is the normality, albeit an unfamiliar one. You must continue to just answer the questions.
Acknowledge The Difficulty Of Judgment
Finally, never forget that it is very difficult to understand exactly what happened in a situation which you were not present at. Judges have to make findings as to fact and as to law. They use the evidence they hear from witnesses to arrive at their factual findings. This is by no means a straightforward matter. Remember that you yourself would struggle to cope with the task of hearing two or more competing parties presenting witnesses all of whom gave differing versions of the truth as they saw it. No matter what you might think of the privileged world of the judiciary, they are still human beings trying to justify their decisions. If you realise that something you say in evidence may be hard to understand, there is no harm in explaining that you understand the difficulty and asking for the opportunity to explain it properly as best you can.