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Witnesses and Testimony

OVERVIEW

Often, the first and only contact that an individual will have with the legal system, in the state of Florida or elsewhere is as a witness. Whether one is a fact witness or a party to a lawsuit who is called upon to testify, answering a lawyer’s questions at a deposition (pre-trial sworn statement) or in court can be an intimidating experience- especially when one does not know what to expect. This article will familiarize a witness with the process of testifying and tell you what you can expect.

BEING SUMMONED AS A WITNESS

Most often, people learn that they may be called upon to give oral testimony through contact from a party to a lawsuit, an investigator or an attorney. The individual who calls you may want to get a statement in advance of the deposition to find out what your testimony will be- did you witness an accident; what did you observe, etc. A witness is generally a person who has direct knowledge about an event through direct observation. Whether you respond to this request for an out of court statement is entirely up to you; the law does not require you to cooperate, but most often, it will help determine whether you will in fact be called upon to testify in a more formal setting. Any telephone conversation with an investigator may be recorded, but only with your permission. You may be asked to meet with an attorney or investigator to give a written statement. Again, whether you do so is entirely up to you- many people consider cooperation to be a civic duty.

Subpoenas

After giving a statement, or even if you decline to give one, you may be subpoenaed to testify as a witness. A subpoena is a legal document issuing from a court that orders a witness to appear at a specified place and time to give testimony. Subpoenas are effective only when served on the witness by a sheriff or process server; it may be served directly on the witness or through substituted service, as by leaving it with an adult at your residence. Ordinarily, the subpoena must be accompanied by a check in the amount specified by statute as a witness fee. The witness fee is a relatively small amount- unless you are an expert witness (e.g., a physician, engineer, etc) who has been hired to give forensic testimony, you will not be paid for your time or the time you miss from work.

Subpoena Duces Tecum

In addition to requiring a witness’s physical presence for a deposition or trial, a subpoena may also require the production of documents or other physical evidence through a subpoena duces tecum. For example, the bookkeeper of a company may be required to appear to give testimony and to produce wage records for a party to the lawsuit.

Protective Orders

If a witness feels that he/she was improperly subpoenaed, or there is an objection to the deposition being given, a witness can file a motion for a protective order- a request to the court to release the subpoenaed party from the obligation to appear. As a practical matter, if a witness will be out of town or greatly inconvenienced by giving a deposition at a particular time and place, the party issuing the subpoena can be contacted and will usually agree to reset the deposition at a time more convenient for the witness. If the subpoena is for testimony at trial, it may be impossible to reschedule it.

Penalties for Failure to Appear

If a witness who is properly subpoenaed fails to appear, the court may impose sanctions or penalties. The witness may be held in contempt by the judge presiding over the case and an arrest order may be issued. The party issuing the subpoena can request an order awarding attorney’s fees and costs that were incurred in the aborted deposition. One way or another, the subpoena must be complied with or objected to.

If You are a Party to the Lawsuit

Attorneys will routinely take the deposition of the adverse party in a lawsuit. In addition to learning the facts from the other side and evaluating the character of the witness, the main purpose of a party deposition is to obtain admissions that can be used to impeach (discredit) the witness or the testimony. So, for example, if the witness is asked, “When did you first see the other car?’ and the response is, “At the very moment she hit me”, it becomes clear that any testimony from the same witness as to the speed of the other vehicle is false, because the witness swore that the first time they saw the car was at the moment of impact.

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PROCEDURE AT A DEPOSITION

Other than the witness, the attorneys in the case and often the parties to the lawsuit will attend the deposition. A deposition is a statement under oath given by a witness or party; it gives the parties an opportunity to learn what information a witness to an event or to background information may offer at trial. A written record (transcript) of the testimony is created- it can be used to impeach or discredit a witness who testifies differently in the future or to refresh a witness’s recollection.

Court Reporters

Testimony offered at a deposition is transcribed (taken down in written form) by a court reporter. The court reporter is a specially trained and licensed person, unrelated to any of the parties or attorneys, who stenographically records the questions and answers. The testimony may be recorded on a special machine called a transcriber that allows the reporter to input sounds, as opposed to words. Usually, no matter how quickly you speak, the court reporter can keep up with you. Before testimony is given, the witness will be required to swear or affirm that the testimony they will give is true and correct.

Translators

If a witness does not speak English, or is more comfortable in a foreign language, the party issuing the subpoena should be contacted so that arrangements can be made to have a translator present.

The Attorneys

After the witness is sworn, the attorney who caused the subpoena to be issued begins questioning the witness. The attorney may not be hostile or overly aggressive; attorneys are required to behave in a manner consistent with professional ethics. Ordinarily, the deposition will begin with standard preliminary questions such as asking the witness’s to state their name for the record, his/her address, place of employment and whether the witness has been deposed (given testimony by way of deposition) in the past. Usually, the attorney will outline the procedure that will be followed at the deposition and advise the witness of the purpose of the deposition. After the preliminary questions are concluded, the attorney will begin to ask questions that go to the heart of the issue in the case. When the attorney has concluded his/her questioning, the attorney for the other side of the dispute has an opportunity to cross-examine and ask the witness to clarify elements of testimony and possibly develop conflicts in the statement. Finally, the attorney who scheduled the deposition will have an opportunity to ask follow-up questions.

Objections

Legal proceedings are governed by procedural and evidentiary rules. If an attorney at a deposition feels that a question or procedure violates a rule, an objection may be made. These objections are made to preserve the record for a later ruling by the judge. After the objection is made, the witness proceeds to answer the question. Ordinarily, unless a question invades a privilege of the witness, such as inquiring into confidential communications with one’s lawyer (attorney/client privilege), all questions must be answered. Testimony at trial is dealt with differently (see below).

Attorney for the Witness

Occasionally, but rarely, a witness may chose to have his/her own attorney at a deposition. The only time this may be necessary is when the witness feels that the testimony may lead to exposure to potential civil or criminal liability in the case. If the witness intends to refuse to answer a question on 5th amendment grounds, that is, that the testimony may subject the deponent (party giving testimony) to criminal prosecution, it is advisable to retain private counsel to protect the witness’s rights and make appropriate objections. If the witness’s attorney advises his client not to answer a question, the witness should refuse to answer it.

Answers to Questions

The following general guidelines are applicable to all depositions, as well as to testimony in court:

  • If you don’t understand the question, don’t answer it – ask the questioner to rephrase it.
  • Answer with words, not gestures or grunts. The court reporter can only take down verbal answers; an affirmative ‘uh huh’ may be transcribed as the negative ‘unh, unh’.
  • If you don’t know the answer or can’t remember, advise that you don’t know or can’t remember.
  • Never guess at an answer. Questions are followed up with additional questions – if you guessed wrong, there will be a whole series of incorrect answers based on a faulty assumption.
  • Allow the questioner to complete the question before answering – the court reporter cannot transcribe the statements of two people speaking at once.
  • Answer the question, but no more than the question. Do not volunteer information – let the questioner lead you to wherever he/she wants to go.
  • Do not lose your temper – often the demeanor of the witness and discovering how the witness will appear to a jury or judge is as important as the testimony.
  • If you need a comfort break or to stand up and stretch, advise the questioner – you are not there to undergo pain or discomfort.
  • If you are a party to the lawsuit, be aware that you will not be able to convince the other side’s lawyer of the merits of your case – the lawyer is an advocate who merely seeks to obtain admissions and testimony that is damaging to your case.

Conclusion of Deposition

After the attorneys have concluded their questioning, the witness will be offered the option of reviewing his/her testimony after it has been transcribed and typed to make corrections in case the reporter took down testimony incorrectly. Witnesses are not permitted to change their answers; only corrections can be noted. Witnesses can waive the right to read the deposition, if they so chose.

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TESTIMONY AT TRIAL

Testimony at trial is treated differently than at a deposition. The judge presides over the trial and makes rulings on objections immediately. If an objection is made, the witness should not answer until the court has ruled; if the court sustains the objection (finds the question improper) no answer is permitted; if the court overrules the objection (finds the objection to be without merit), the witness is permitted to answer.

Entering the Courtroom

When a witness is called to testify in court, he/she will take a seat in the witness box-usually located between the judge and the jury. The clerk of the court or judge will ask the witness to stand, raise their right hand and swear or affirm to tell the truth. Thereafter, the witness will take a seat and begin answering questions posed by one of the attorneys in the case.

Common Objections

During the course of a trial, objections will inevitably be made. It is helpful if the witness understands the basis for the objection. Some of the most frequent objections are set forth below.

  • Leading Questions

Unless the witness is hostile or a child, leading questions may not be asked. A leading question is one that suggests the answer and is most often answered ‘yes’ or ‘no’.

Q: “You saw the defendant spill liquid on the floor, correct?”- Objection, leading! (Correct form: “What, if anything, did you see the defendant do?”)

  • Hearsay

Hearsay is an out-of-court statement that is being offered improperly to prove an element of the case.

Q: “What did John (another witness) say to you?”- Objection, hearsay! (John must be brought to court to testify as to what he said).

  • Witness not Qualified

A non-expert witness may not testify to matters outside the scope of his/her knowledge.

Q: (Of a 10 year old) “How fast was the other car moving?”- Objection, the witness is not qualified to answer the question! (Better bring in someone with a driver’s license)

  • Argumentative

An attorney may not argue with a witness.

Q: “You don’t mean to tell me that you actually could see the defendant from that distance.” -Objection, argumentative! (Correct form: “Given the fact that you are nearsighted and weren’t wearing your glasses, that is was midnight, there were no lights in the parking lot, and that the defendant was 200 yards away, how were you able to identify him?)

  • Irrelevant and Immaterial

Questions asked during trial should be relevant and tend to prove some necessary aspect of the case.

(In the trial of an automobile accident case)
Q: “How often do you beat your wife?”- Objection, irrelevant and immaterial!

Demeanor at Trial

The witness should neither overdress nor be too casual. He/she can look at the jury when offering testimony. Never lose your temper – the jury will punish an overly aggressive attorney in its verdict if they think he is a bully. Tell the truth as best as you can recall it.

Hoffman, Larin and Agnetti, PA offers a free consultation at our offices located in Dade, Broward and Monroe Counties and can be reached at (305) 653-5555.