If you are representing yourself in court, you should be ready to tell your side of the story. You should know that you have a right to call witnesses who can help you prove that you are telling the truth and that your version of events is the correct one. There are many rules you must follow when you go to court, including some on how to question your witness and how to question the witnesses of the other party (See Representing Yourself in Court: How to Cross-Examine (Question) An Opposing Witness). This article will help you understand the rules for questioning your witness and help you make the most of having a witness.
What to Prepare Before Court
Choosing a witness:
A witness can help you prove that your version of events is more likely true than your adversary’s (the person you are suing or who is suing you). When choosing a witness, you must think about who has actual knowledge about the case. Your witness should have firsthand knowledge of facts and events, so he or she can tell about what he or she knows. A witness who heard about the situation from someone else will not be helpful. Someone who does not have personal knowledge about the matter being discussed in court is not going to be an acceptable witness.
Preparing your witness for court:
It is important to talk to your witness before going to court. Talk about what you will ask her in court. Practice asking questions as if you are in court. Sometimes witnesses get nervous when they are in court and forget what they should say, or do not say what you are expecting. Practicing the testimony will help calm down and prepare the witness, and it will also help you to know what to expect at trial. The most important point to remember is that you should never encourage or ask your witness to lie. It is also important to let your witness know that it is okay to say “I don’t know” or “I don’t remember” as an answer to any question she is asked in court. It is not okay for your witness to lie. You should never compare stories with your witness to try and match facts.
You should talk to your witness about what to wear and how to act in court. Witnesses should dress as if they were going on a job interview. You want your witness to pick an appropriate and comfortable outfit that says, “I am in court for a reason and I deserve to be taken seriously.” The way your witness acts will be a direct reflection on you and your side of the case. Be sure to encourage your witness to make eye contact with the jury members or the judge when answering your questions. Your witness should not appear to be annoyed or angry towards your adversary. This will only discredit your witness and make people think she is testifying because she does not like your opponent. Your witness should try to maintain a calm attitude, be polite, and tell the truth.
Practice questioning your witness:
Organize the questions you will ask your witness and be specific. Let your witness know that you will want her to listen carefully to each question she is asked and answer that question specifically. People generally don’t tend to pay attention for very long periods of time. It is important to think about what you want your witness to help you prove and ask questions that will get that information out. If your witness talks too much and goes off topic, it will be harder for everyone to listen carefully to the important information she is providing for your side of the case.
Clear descriptions and a logical flow of questions and answers help paint a picture for the judge and jury. Choppy and confusing testimony may not help your side of the story seem true.
How to Successfully Question Your Witness in Court
You decide when to call your witness. Calling a witness means asking the judge to bring her into the courtroom, swear to tell the truth, and answer questions about what she knows. When it is time, tell the court her name and the court officer will get her, bring her to the stand, and have her sworn in. Your witness will most likely be sequestered (kept separate) in the hallway until it is her turn to speak. This is so that witnesses will not hear what either side has to say, and it ensures that their testimony is not being influenced by what has been going on in the courtroom. The judge or any attorney present usually requests that the witnesses be sequestered. If not, you can make the request. It is a good idea to ask that witnesses be sequestered because this ensures a fair trial.
Create a good rapport:
Start by asking the witness to identify herself and explain how she knows you or is connected to the case. It is very important that the witness actually saw, heard, or had involvement in the issue. A witness who was not present or has information to share that she heard from someone else may not be helpful. Be sure to get someone who has actual knowledge of what took place.
Next, ask questions that show why the witness’s testimony is important. Why is she there? Was she walking home from work when she saw the accident? Did she notice anything unusual as she was leaving her house? Was she playing in the park with her children when she heard something? The jury will have an easier time believing someone they can relate to.
Remember that the order of your questions and the flow of conversation between you and your witness is important. Appear interested in what she is saying, look her in the eyes, and listen carefully to what she has to say in case she says something you weren’t expecting. Think carefully about what questions to ask to follow up on whatever she has said.
What you really want from your witness:
Encourage your witness to use details—descriptive words help paint a picture in the minds of the judge and jury. If the witness saw a car accident, ask her to describe the loud screech of the car slamming on its brakes before the crash. Think about what she knows and remember that will best help you in your case. You can ask your witness a lot of questions as practice and then only pick the ones that really make your side of the story seem strongest at trial. Set the scene for where the event took place—explaining why your witness was there, why her testimony should be believed, and details of what she saw that will help the jury/judge to understand specifically what happened.
What kind of questions can you ask?
There is a certain way you must ask your witness questions in court. You are not allowed to ask your witness leading questions. A leading question suggests what the answer is within the wording of the question. For example, you cannot say, “When you saw my car approach the intersection, the light was green, wasn’t it?” This question sounds as though you are trying to give the witness the answer you want her to give. You must ask questions beginning with words such as Who, What, Where, When, Why, How, Describe, Tell, Explain, etc. You should ask questions that allow the witness to provide her own answer. For example, “Witness, what did you see at the intersection of A and B streets?”
It is also important to think about the questions that the other side will ask your witness. You are not the only person who will be able to ask your witness questions. Just as your witness has to tell you the truth, she must also tell your opponent or judge the truth. Therefore, you must think about anything your witness knows that may hurt your side of the story. It is better to ask your witness about information that the other side will want to get out first. This will make the information seem not as damaging to your story and will not shock the jury or judge as much as it would if your opponent brought out the information first.
If you decide to get out the damaging evidence your witness knows when it is your turn to question her, think about when you will ask about it. The middle of your questioning is a good place. People tend to listen best in the beginning and at the end. Also, if there are questions you can ask along with the damaging ones that make the bad information not seem as bad, be sure to ask them. This way, you are able to successfully get out all of the information you need, while at the same time not ruining your case. For example, “When you observed the accident what was the weather like outside?” (Dark and stormy.) “Were you still able to accurately see everything that was going on?” (Yes.) This will help you to show that although visibility at the time of the accident was not very clear, the witness is still sure she saw the accident and her description can be trusted. You should also decide if you still want to call the witness after learning about the bad information.
What happens when you are finished asking your witness questions?
When you are finished asking your witness questions, the judge may decide to ask questions. Sometimes the judge will want to clarify information your witness gave. A judge may think of an independent question he or she would like your witness to answer. The judge may choose not to ask any questions at all.
Your adversary may ask questions. Your witness must answer each question truthfully. It is okay for the witness to say, “I don’t know” or “I don’t remember” if those are truthful responses. When your adversary is done, and the judge has no further questions, your witness is done. The judge will ask the witness to leave the courtroom.
Important points to remember!
Before you go to court:
- Practice beforehand with your witness so you know what she will say, and you will know what types of questions you should ask to get the relevant information out.
- Discuss what to wear and how to act in court with your witness.
- Encourage your witness to use her five senses when describing the event.
- Organize your questions so you are able to get the witness to tell a story with her answers.
- Prepare for the bad facts (and place questions about them in the middle of your witness’s testimony).
When you are in court:
- Your witness may be sequestered.
- Ask questions that will show the judge or jury why your witness is relevant to the case.
- Although your questions must be open-ended, make them as specific as you can.
- Focus on what is most important so you get the best and most relevant information out.
- Maintain a good rapport with your witness during questioning.
- Tell the truth!
If you are involved in a case in civil court, you may be able to get advice by calling LSNJ-LAW™, Legal Services of New Jersey’s statewide, toll-free legal hotline, at 1-888-LSNJ-LAW (1-888-576-5529).
This article originally appeared in the September 2011 issue of Looking Out for Your Legal Rights®.