How to Testify

Lawyer testifying during jury trial

How many times did you testify during your last trial?

According to the Federal Rules of Evidence definition of “testimony”, your official answer should be zero.  Unless something bizarre and unexpected arose, you probably didn’t find yourself raising your right hand, swearing or affirming to tell the truth, sitting in the witness box, and then telling “the truth, the whole truth, and nothing but the truth.”

But that doesn’t mean you didn’t testify.  In fact, you probably testified more than anyone else in your case, because each time you arose from your seat and spoke to the jury, you were “testifying” and giving the jurors a chance to assess your credibility and your belief in the case.

So, with that new definition in mind, how many times did you testify during your last trial?

If you’re like many lawyers, your answer is probably “twice”: Once during opening statement, and again during closing argument.

But think again.  When you stood before the potential jurors during jury selection, you were testifying there, too.  In fact, that was the first time they got a chance to see you and evaluate how you felt about the case, so it might have been one of the most important times you “testified.”  So, the correct answer is 3 times, right?

Not quite.  If you did a good job of trying your case, the correct answer should be that you testified four times during your last trial.  The fourth time that you testified, and the time that most lawyers forget about, is during cross-examination.  (Why isn’t the correct answer five times, once for each portion of the trial?  Because hopefully the jury was so attuned to what your witness said during direct examination that they didn’t even notice you were there.)

The great thing about cross-examination is that it allows you to testify during your opponent’s case.  Although many lawyers think that the person in the witness stand is the one testifying during cross-examination, that’s not true.  If you’re doing it correctly, it should be you “testifying” to each factual statement, while the witness merely nods his head in agreement with what you’ve said.

The reason you get to testify during cross-examination is because you’re allowed to ask leading questions.  The leading question is the only tool that the Rules of Evidence provide you for controlling the witness and discovering the truth.

Unfortunately, many of us don’t wield that tool as effectively as we could.

If you were prepping an important witness for trial, you’d help them to ensure they testified powerfully and persuasively, right?  Well, it’s just as important to maximize the effectiveness of your testimony during cross-examination.  One of the easiest ways to improve your testimony during cross is to eliminate any surplusage in your questions.  These irrelevant words and phrases can dilute the power of your cross-examinations, create confusion, or give the witness an opportunity to wiggle out from under your control.  If you’ll make an effort to reduce their use, your testimony will become more persuasive.  Here are three examples of surplusage, and tips for eliminating them from your testimony:

Surplusage #1: Adverbs
Adverbs dilute the power of your cross because they provide the witness opportunities to disagree with your questions.  For example, if you tell the witness, “You walked south on Elm St., away from the crash scene,” there’s not much room for disagreement.  He either did, or he didn’t.  But, if you add an adverb to the statement (“You quickly walked south on Elm St., away from the crash scene,”) the witness gets a chance to fight you, because now the question asks for a subjective interpretation, rather than asking for strictly objective information.

Read through your list of cross-examination questions and look for any words ending in “-ly.” When you find them, strike them from the page.  By eliminating these quibble words, you’ll make it more difficult for the witness to disagree with you.

Surplusage #2: Perceptions

Many lawyers will ask the witness what they perceived, rather than what happened.  Here’s an example:

“You saw the tall man pull out a handgun?”
“You saw him point the gun at the shorter man?”
“You didn’t see anything in the shorter man’s hands?”
“You saw him pull the trigger?”
“You heard a single gunshot?”
“You saw the shorter man fall to the ground?”

The most important part of those questions isn’t what this witness saw, it’s what the tall man did. Strengthen the imagery in your testimony by focusing on the events, rather than the witness’s perception of the events.  Instead of asking how the witness observed the event (“You saw Johnny walk into the bedroom?”), remove the “you saw” elements from your questions and go directly to the facts: “Johnny walked into the bedroom.”

Notice how much removing the surplusage makes it easier to follow the story:

“The tall man pulled out a handgun?”
“He pointed the gun at the shorter man?”
“The shorter man didn’t have anything in his hands?”
“He pulled the trigger?”
“A single gunshot rang out?”
“The shorter man fell to the ground?”

Surplusage #3: Taglines
Taglines can be an effective tool for helping you ask leading questions:

“You own 30,000,000 shares of SuperMegaCompany stock, correct?”
“Your best friend is the president of that company, isn’t that true?”
“He told you to sell all of your shares on October 2nd, right?”
“You sold every share you owned, didn’t you?”
“The company declared bankruptcy three days later, didn’t they?”

Used occasionally, taglines can add dramatic impact to your most important questions.  However, used to excess, these taglines can distract from your cross-examination, especially if you repeat the same tagline over and over.  (“Correct?”   “Correct?”  “Correct?”  You’ll sound like a broken recording!)  By eliminating taglines, you can streamline your cross-examination into a series of back-to-back factual statements that tell a persuasive story, punctuated only by the witness’s “Yes” response to each statement:

“You own 30,000,000 shares of SuperMegaCompany stock?”
“Your best friend is the president of that company?”
“He told you to sell all of your shares on October 2nd?”
“You sold every share you owned.
“The company declared bankruptcy three days later.

If you practice before one of those judges who refuses to believe that voice inflection alone is insufficient to turn a statement into a question, you may feel forced to add taglines to all of your questions.  However, if you find yourself in that predicament, try using taglines on the first few questions, and then dropping them.  Having set the tone with your first few questions, the witness will be trained to say “Yes” to your statements, and no one will notice that you’ve dropped the taglines:

“You own 30,000,000 shares of SuperMegaCompany stock, correct?”
“Your best friend is the president of that company, isn’t that true?”
“He told you to sell all of your shares on October 2nd, right?”
“You sold every share you owned.
“The company declared bankruptcy three days later.

You probably can’t eliminate all surplusage from your questions (nor should you try), but once you’re aware of how it detracts from the strength of your testimony, you’ll want to make efforts to reduce it.  Invest the effort to properly prep yourself for trial, and your “testimony” may make the difference between winning or losing the case!

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6 thoughts on “How to Testify

  1. The structure of legal pleadings is a difficult topic requiring much practice and skill. Wondering if you will be looking at that topic in the future?

  2. Sound, sage advice. tis helps keep an attorney focused on not only the facts to prove or disprove but on the “how” they use to do so.
    There is nothing more gratifying then hearing a juror, after a trial, tell you they completely understood what you said!

  3. Your article on how many times attorneys testify at trial is helpful and will continue to be helpful until there is no dispute whatsoever in this world, no court and no jury.

    Owolabi Alaba
    Nigeria, West Africa

  4. Hi Elliott!

    I love, love, love the Trial Tips Newsletter! Concise, witty, accurate…I think it had made me a more effective counsel amd I make all my students read your website. Keep up the great work!

  5. Love the new format for newsletter…makes it so much easier to read on my phone! Just read today’s as I am waiting for trial to start. (Great refresher from trial advocacy class I had with you a couple of years ago at Barry!)