If you find yourself on the stand, consider these easy pointers that I’ve honed from over a decade of testimony as an expert witness.
Stick to the truth. You are under oath, and perjury is a real crime punishable by law and can be more of a problem for you personally than anything else you say on the stand.
Paper and electronic trails
All kinds of evidence will be collected and made available to the court, including corporate documents, emails, texts, voicemail transcripts, employee records, financial records, security camera footage, etc. Attorneys can use these as a basis to ask you questions. Remember these sources of evidence, so you don’t find yourself contradicting your own emails, for instance.
Subpoenas and lawyers
If you are the first one to receive a subpoena on behalf of your company/organization, bring it up immediately with your manager, and/or with company counsel so that the parties to the lawsuit can attempt to legally quash the subpoena if they wish. If you are implicated or named as a party to the suit, consider hiring an attorney to represent you. Although all subpoenas include threatening language, those from judges/the court hold more legal power than those written by attorneys.
What’s the legal question?
Understand what the legal question is exactly, so you know both what opposing counsel is trying to prove, as well as what the attorney for the business is trying to prove. If you don’t understand the legal jargon, ask counsel for a proper explanation. For instance, in an employment lawsuit, is opposing counsel trying to prove a hostile environment? Make sure you understand how hostile environment is defined. Insist on meeting with company counsel beforehand to understand what questions they will be asking on direct examination.
Deposition and trial testimony is a way for the attorneys to control the flow of information that is available to the decision-makers (e.g., judge and jury). It would be nice if you could just give a monologue on your side of the story. But the Q&A oral format allows counsel to take turns controlling the questions and controlling what answers are considered by decision-makers (this is done by the use of objections). Opposing counsel often knows the answer to your questions, so don’t try to outwit or mislead them. It’s better to say ‘I don’t recall’ than rely on shaky memory.
Opposing counsel’s deposition and trial questions can be like an elongated mousetrap. Lawyers often set up a series of easy questions to lure you into admitting what often is a (mis)representation of the facts that is more favorable to their case. This means that you have to resist answering questions in ways that feel unnatural to you. Remember, you are the expert in your field and your job. Do not let opposing counsel frame the way you talk about your expertise.
For example, if a 1-10 rating scale or percentages or probabilities are not how you talk about a concept in your profession, resist using such numbers, even if the attorney’s question is framed that way. Opposing counsel might ask, “On a scale from one to ten, how would you rate the safety of your product?” If that’s not how you rate it, just say so, and tell them how you do rate product safety.
Similarly, if the answer is more complicated, then do not let them pin you into answering it as a ‘yes’ or ‘no’ question. You can say, “There are several components to my answer...” and keep talking. If you encounter resistance, you can say, “It is not a simple ‘yes’ or ‘no’ answer.”
You will be provoked
Opposing counsel has the upper hand when conflict and anxiety are in the room. So expect them to provoke you. Keep your voice calm even when they are loud or intimidating. Avoid saying anything rude, combative, sarcastic, or losing your temper on the stand—even if opposing counsel is doing just that. Stay Zen, because losing your calm will knock points off your professionalism and therefore your credibility as a witness. Notice how attorneys act like they’re at war during the actual testimony, but then engage in chummy chatter during breaks. If opposing counsel decides to be rude, just ignore it, especially if there is no question pending.
Nosy and personal questions
If you are testifying not as a party to the case but as a professional, resist answering personal questions. You can say, “I don’t answer personal questions unless directed by a judge. Feel free to call the judge and if he or she orders me to answer the question, I will.” Depositions are often more stressful than trials for the very reason that the judge is not physically present to arbitrate and address objections right then and there. Depositions are an opportunity for opposing counsel to dig around for information, but also to gauge what will rattle you as a witness.
Permission to speak
If you absolutely need to address the judge, say “your honor,” even if it may sound passé. During testimony, especially a trial, you cannot talk when there is no question pending. If you feel that some important fact was left out, you can try to sneak it into a relevant question. “I forgot to add that...” If you need to correct a big error you made, do it promptly, as the cross-examining attorney will likely exploit it. For instance, “I just want to clarify that I misspoke when I said...”.
Don’t be defensive about your limitations or the limitations of your data or your process. Instead, readily admit these with confidence. “Of course, I haven’t read everything published in my field.” “Of course, there is a margin of error...” “Naturally, there is always room for improvement...”.
When preparing, write down what you are trying to explain in the most logical and clear order (and practice it orally) so that you remember how to phrase a complicated concept. Talking is different from writing, as you don’t have the opportunity to edit and re-order your thought process. Your answers need to be crystal clear, otherwise, they can be misused. If you bring personal testimony preparation notes along to the deposition/trial with you, be aware that they may become part of the official record unnecessarily.
Think for as long as you need before you talk. Every word—and um—is written down—um—by the court reporter and becomes part of the deposition or trial transcript. But silences are not recorded. ‘Yes’ and ‘no’ look better than ‘yeah,’ ‘uh-huh,’ and ‘uh-uh.’
If they don’t offer, order your deposition testimony transcript afterward in case there are serious errors that you can still correct. It is also the best way to learn from your testimony mistakes.
Props for peak performance
Maintain your mind and body at peak performance and comfort. Pack water, juice, or caffeine if you need a sugar or caffeine boost. Remember that caffeine can mimic symptoms of anxiety, so don’t overdo it. Wear professional but comfortable clothes for this formal setting. Dress in layers so you can regulate your temperature. A cold or overheated witness looks like an anxious one. Pack a sandwich (in a tight Ziploc) in case you want to use your lunch break to review materials instead of spending the whole hour hunting for food near the courthouse.
A good witness
Remember that your job as a witness is simply to tell the truth and nothing but the truth to the court. So, stay relaxed, and make eye contact with everybody present, and project confidence, from the beginning, all the way until you leave the courtroom. As a witness, you only have control over delivery and content—not over the outcome of the case. That is the judge and jury’s job. So don’t act too emotionally invested in the outcome. The more clear and neutral you are, the more the judge and jury will see you as a trustworthy and helpful witness.