Litigation is booming. Companies are sued, and directors and employees frequently have to attend court hearings. Although company directors think nothing of taking media training, they largely avoid training for court appearances. Perhaps this is because they are supposed to tell the truth in court!
Unfamiliarity with procedures can make a court appearance off-putting. Lawyers are trained to question witnesses to elicit the best response for their client. They are familiar with court procedures and know how to hold a line of argument. Although managers may know all about their subject, they often do not know how to communicate to a lay audience in a courtroom. An inexperienced witness can be like a lamb to the slaughter.
I saw this happen some years ago when I had asked an expert witness to prepare a report for me. I met him in the office and he seemed competent and knowledgeable. In fact, he produced a good report. I thought all would be well in court. I was wrong. He was completely thrown by the cross-examination, did not hold to his line of argument and became quite upset.
Remember that, ultimately, the court wants you to do well. The purpose of the court is to make a decision and so the court needs to hear you clearly and understand your evidence. You are not on trial, but are there to help the court with your evidence. You may well know more about the case than anyone else in the courtroom. You have a very important part to play.
The process
The process of giving evidence divides into three parts. The first is the examination in chief, when questions are asked by your counsel. Cross-examination then occurs, when questions are asked by the opposing counsel. After this, there may be re-examination, when the first lawyer can pick up on matters raised in cross-examination. A trend these days is for there to be minimal examination in chief. This means witnesses can find themselves facing cross examination without first being warmed up by the lawyer who asked them to give evidence. It is important to be fully prepared.
Credible witnesses
The judge needs to trust you as someone who can credibly assist in deciding the case. Judges are worried about making the wrong decision and want you to help them get it right. The best compliment you can be paid by a judge is “Thank you, I now understand the case”. Judges will look at the way you respond, as well as at the answers themselves. In order to be effective, you need to present yourself as well organised, interesting and memorable.
Keeping good records may not seem important at a time when getting on with the job appears more pressing. However, if you are called to give evidence and are cross examined about what happened at a particular meeting, for example, you will need to have clear records. If you do not, you will only have your memory to rely on, and it is all too easy for similar meetings to merge into one in the memory. Good notes make all the difference. Take care with all records.
Quality evidence
The essence of giving good evidence is simple: communicate clearly. Do not be afraid to explain things in simple terms. You are not there to impress every one with your erudition, but to help the court come to a decision based on the evidence. Treat each question as an opportunity to emphasise your careful and professional investigation. Modulate your voice to make it interesting. Get some voice coaching! Make sure you speak loud enough for all to hear. If you are asked to examine a document, stop talking. Read, then talk.
Giving evidence can be very satisfying. Proper training can give you the necessary confidence. It also helps to go to a hearing. Courts are generally open to the public and you can learn what goes on.
Mark Solon is a solicitor with specialist legal training company Bond Solon Training, Tel: 020 7253 7053, E-mail: marks@bondsolon.com
Dos and don’ts:
Have you been asked to give evidence? The way you present it will affect the weight given to it. So you need to get both the evidence and the presentation right to be as effective as possible. Here are some basic pointers.
Don’t
Argue, harangue or advocate Your job is to give evidence from the best of your knowledge, not to win the case. Do not try to score points off the lawyers. You will lose!
Try to answer anything outside your specific field Stay within the boundaries of your expertise.
Think on your feet All your thinking should be done before you walk into court. This is where preparation is so important.
Use technical terms without an explanation in simple language Do not talk as if to colleagues who are already familiar with your subject. The judge is only a lawyer.
Lose your temper Your credibility as a witness will evaporate. Do not take things personally. Lawyers do not. They may verbally insult their opposing lawyer in court and then meet for a gin and tonic after the hearing. Look upon critical questions from other barristers as being part of the process of testing evidence.
Do
Dress smartly, but not ostentatiously You do not need to ‘power dress’. Wear clothes that make you feel good and comfortable. Remember you may have to stand to give your evidence for some time and that you may have to come back to court several days running.
Arrive early at court Check out the courtroom before the hearing starts, and ask a lawyer or usher how to address the judge. Leave plenty of time and plan travel arrangements carefully. You will then be unflustered when you come to give your evidence.
Arrive carefully prepared Ask yourself the obvious questions that you may be asked beforehand and work out your answers. Double-check every thing before leaving for court. Have your own personal checklist. It will save you missing things in the heat of the moment. Make things easy for yourself.
Listen to questions and do not rush your answers Look at the questioning lawyer and listen carefully. Do not rush to answer. Hearings are actually much slower than they appear on television. The judge has to write in longhand, so will appreciate your taking things slowly.
Address all answers to the judge You should stand with your feet facing towards the judge. This will remind you to speak to the judge rather than the lawyer. It also helps the judge to hear you better.
