Oh Yeah Tell it to The Judge: Every Woman’s Primer on Testifying in Court (2004)

Every Woman’s Primer on Testifying in Court

The Judge does not know you, has never read anything about you and has only the information about you that you give her in your testimony and only the evidence that the trial discloses. Testimony is what you say. Evidence is what you provide. Without your testimony, nobody will know your evidence. Without your evidence, you do not have a case.

It is important that what you say is truthful and more importantly perceived to be truthful. To be truthful and perceived to be truthful, you must be understood. Understanding is in the mind and ears of the hearer and not in yourself. To be understood by someone other than yourself (and of course, your lawyer) you must be clear and concise and heard.

The legal system is adversarial.

You are not in court to get approval. You will not get approval. Do not even try.

TIPS ON TESTIMONY

1. Always direct your answers to the Judge. She or he is the only important person in the room.
2. Do not get into arguments with either the lawyers or the Judge. This is no place to try to win an argument…it is guaranteed you will lose. The lawyers get to do the arguing.
3. Avoid trying to involve the other lawyer personally. “You would do the same if you were me” is not a good answer. The other lawyer is not a person for the purposes of this trial, she is doing her job.
4. Avoid trying to convince the other lawyer of the rightness of your position, the truthfulness of your answer, the justice of your cause. She doesn’t care. She may have all the empathy and sympathy in the world for you on her own time. But she is doing her job. And if she is doing her job properly, you will not be able to convince her or win her over to your side in any obvious way.
Whether she believes you or not or if her client is a jerk (and she may Even know it), she will not let on.
5. Do not answer a question with a question. You are there to provide answers and everyone else…your lawyer, the other side’s lawyer and the Judge…get to do the questioning. Besides it makes you sound like a “smart-ass” and we let the other side do that.
6. If you do not understand the question, if you do not hear the question, if you are confused by the question, if the question doesn’t not make any sense, SAY SO. All too often, the lawyer herself does not understand the question. Do not guess at what the question is. Your guess will decidedly be the wrong.
7. Think before you answer but don’t be quiet for too long. It then looks like you are trying to fabricate your answer. If you need more time, ask the lawyer to repeat the question. (She may have forgotten what it was.)
8. Do not guess. I know you want to provide an answer. We always want to provide an answer. But it is also acceptable to NOT KNOW or to NOT REMEMBER.
9. “I guess so” is not an answer. It indicates you are trying to be agreeable and go along with the suggestion made to you. If the answer is NO, SAY NO. If the answer if YES, SAY YES. If you do not know, SAY I DO NOT KNOW. If you do not remember, SAY I DO NOT REMEMBER.
10. “Not really” is not an answer. It says to the Judge “yes with conditions”, it says to the opposing lawyer “this is a witness who is not sure about her evidence”, it says to yourself “no” it says to the lawyer “omigod, I didn’t tell her about not saying “not really”.
11. You do not have to be sorry for most things. It is okay to forget dates, mispronounce names, not remember or not know. Constant apologizing is unnecessary, boring, sounds insincere and at best, will lose the interest of the Judge and at worst, make her think your evidence is as ungenuine as your apologies. We have to keep her interested, It also distracts you from your job which is to provide your evidence.
12. If you need to explain, do it quickly as the opposing lawyer may not want the Judge to hear your explanation and will cut you off. If necessary, override the interruption. You may also ask the Judge to allow you to answer the question fully. (It’s called assertiveness, not aggression.)
13. This is the opposite advice but in different context,. Do not anticipate the question from the lawyer and speak before she has finished asking the question. Wait to see how the question ends, it might be different from the one you were expecting.
14. Avoid sarcasm. If it is understood, it reflects badly on you personally. This is the only time the Judge gets to see and hear you and the impression you make is important. If it is NOT understood, you could be in trouble. “Yes, right, I beat up my own child.” Remember that the proceedings are taped and may be transcribed at a later date. Sarcasm does not show up on paper.
15. Avoid jokes. Wit is wonderful but wit in witnesses (especially women) is woefully witless. The only witticisms a Judge enjoys are her or his own.
16. Do NOT lose your temper, A common strategy for opposing lawyers is to goad a witness into anger. IT WORKS! Witnesses say things in anger that are very damaging and cannot be retracted or fixed. Breathe deeply and count to 10 (to yourself).
17. Answer only the question asked. Rambling answers lose everyone’s interest and eventually even your own. You will forget what you were trying to say. Focus. Focus. Focus.
18. If you have the habit of laughing or smiling when you are nervous, stop it right now. The courts do not acknowledge nervous laughter or smiling habits. It is NOT a good thing to appear to be making light of the austere and serious business of law, which has been fashioned by men over the centuries. The ‘reasonable man’ and the ‘objective standard’ never suffer from nervous laughter attacks.
If you feel such an attack coming on, bury your face in your hands or a handkerchief-a woman being emotionally overcome with tears is expected and approved, a woman apparently overcome with amusement is an appalling spectacle and demonstrative of disrespect of the grossest kind.
19. Do not let the sound of your own voice frighten you. Keep your speaking voice steady and in speaking volume to the very end.
20. Women….this is your chance to finish a sentence! We too often stop before we finish the thought or answer. This could be because being actually listened to is rarefied territory for us. If you have followed all steps to here, you are NOW being listened to very closely. The sentence must be finished. The opposing lawyer does not like to be kept hanging, she will fill in the blanks for you. The Judge does not like to be kept hanging, she will ignore everything you said because you did not complete it. (Incomplete evidence is equivalent to no evidence.) Your lawyer does not like to be kept hanging because she will want to and not be able to finish the sentence for you.
21. When finishing your sentence, do not let it disappear. Avoid dropping the volume of your voice as you near the end of the statement. If the Judge is listening, she will be annoyed and a sharp rebuke of “speak up” may make you forget what you’re saying and yet another sentence does not get completed.
22. Now that you are at the end of your sentence, you do not need approval. Avoid intonations that imply you are asking a question or ending your sentence with words that ask a question...you know? Right? Alright? Okay? This is a common speech pattern but it suggests that your approval-seeking is to test how an untruth is being accepted. “Did I get that whopper across, or what?”
We all do it, you know? I have heard women Judges do it, right? It is also frequent among women lawyers, okay?
23. Do not qualify or reduce your answers by unwise modifiers. The Judge will remember the qualifiers and not the evidence. What she has to do at the end of the day is ‘weigh’ the evidence. Many of your extra words lighten the weight of your evidence. The weighing scales of the courtroom come in only two sizes-light and heavy. The ‘sort of’, ‘kind of’, ‘seems like’ evidence doesn’t even register.
“He used to sort of hit me.”
“The child kind of said that he sort of pushed her.”
“He didn’t seem to see me.”
“I didn’t exactly mean to, like, to do that.” WRONG
“He hit me on the head numerous times.”
“The child told me he pushed her.”
“He did not acknowledge me.”
“It was not my intention.” RIGHT
24. These are the weak modifiers. Now watch the overly strong ones.
“I was really, really sick..”
“I was extremely, enormously tired and I worked around the clock.” WRONG
“I was very ill.”
“I was beat after a double-shift.” RIGHT
Women have a reputation for exaggeration in the courts and surprisingly often, a Judge will say that she “finds that the witness greatly exaggerated her evidence”. It is perhaps our overuse of modifiers and adjectives and hackneyed expressions that exaggerate our verbal expression. It says we do not expect to be believed therefore it is necessary to really, really convince you by really, really emphasizing what we are saying. If we do not expect to be believed, we won’t be.
25. Never use a soft word or a soft description when you mean a hard word and a hard description.
“He pushed me around.” WRONG
“He beat me, punched me in the face with his fist and kicked me in the ribs when I fell.” RIGHT
You are not protecting him, he will not protect you. Tell it like it is or was. Your evidence must have impact if it is going to have an effect.
26. Use active sentences not passive sentences. Your evidence must have impact if it is going to have an effect. The active, assertive sentence will be remembered when the passive sentence is lost…and you will be lost with it.
“It was done.” WRONG
“I did it.” RIGHT
27. It is okay to use “I” sentences. Too many of us make ourselves invisible and write ourselves out of the script.
“The car was outside.” WRONG
“I was in the car outside.” RIGHT
“The house work was done.” WRONG
I did the house work.” RIGHT
28. TOO much explanation weakens your case and casts suspicion on the truth of your evidence. It is hard to know precisely when you are at that place of TOO MUCH but you will know when you begin to feel that you are babbling. The odds are that you are.
“You always know that the black-eyed, bruised woman you have just met, who tells you that she slipped on the rug, hit her head against the post, flung her arm to prevent the fall, had on old clothes and old slippers so her footing was not too stable and the slippers were down at the heel and had a slippery leather bottom so it didn’t grip the floor too well, is a battered woman and the bruises and black eye were caused by her partner.” WRONG
29. Don’t give the evidence of the other side. You don’t have to provide excuses for him any more. You cannot say for sure why he did what he did, you cannot say what he thought when he was doing it, you cannot say how he felt.
Let him give his own evidence, it’s his trial too. (You may be very surprised about how wrong you are about why he did it, what he felt and how it was all your fault.)
It is up to him to explain that he was too drunk to know what he was doing, it is up to him to say he was angry because you didn’t have dinner ready.
30. The courtroom is not the place to work out any misplaced guilt feelings. You don’t deserve it, you didn’t cause it, you were not always at fault. The Judge will willingly give you all the blame if you insist on taking it.
31. Trust your instincts. If you feel that you have given a misleading answer, if you feel that a wrong impression has been created, if you feel that something could have been said differently, fix it whenever you get the opportunity. Once you have left the witness stand (you usually sit), your chances to repair any damage done or errors in your evidence are GONE.
32. When the opposing lawyer is questioning you, do not ask your lawyer “do I have to answer that question?”. You have to answer that question unless your lawyer objects. When it is a question from your own lawyer, you have not discussed your case well enough with your own lawyer. Now is NOT the time to have a disagreement about the case with your lawyer unless you intend to fire her on the spot.
33. When your lawyer objects, be quiet. Let her argue why the question should not be allowed or the evidence tendered not to be put to you, the witness. If the Judge overrules the objection, THEN you answer (don’t you keep objecting, if your lawyer has lost the point, it’s lost).
34. You will get a chance to explain when you are being cross-examined. If the answer you want to give is “yes…but”, answer the question as a “no…because” of vice versa.
35. In responding to a question, go from the general to the specific NOT the other way around. Putting context before specifics gives the specifics greater impact. Specifics before context waters down your evidence.
“My daughter has regressed because of distress, children respond badly to tension.” WRONG
“Children respond badly to tension. My daughter has regressed because of the distress.” RIGHT
36. On the same idea, give context first and then answer the question. In cross-examination, you won’t get a chance to give context. If it happened only on a specific day in very specific circumstances, tell that first and then tell it last.
“My son had the measles and was not feeling well and was very cranky when he said that he wanted to run away from home” RIGHT
“It was because he was sick with the measles that that happened” RIGHT
37. Hold your thought and stick with your answer. In cross-examination lawyers will often ask the same question (in a different form each time) over and over to try to show inconsistency or to upset a witness who starts off being definite but under the barrage gets less and less sure. Constant questioning in the same vein is effective in causing the witness to back off from an answer
Q: “You said the abuse was very, very bad?” A.: “Yes”
Q: “You mean it was very bad?” A: “Yes”
Q: “It was bad?” A: “Yes”
Q: “How often did he hit you?” A: “Six times”
Q: “But you only described four times?” A: “Well there were other times too.”
Q: “But you only remember four times?” A: “Yes”
Q: “So it’s fair to say there were four times?” A: “Yes”
Q: “There could have been even fewer times?” A: “Yes”
Q: “A couple of times maybe?” A: “Yes”
38. Don’t dwell on the small things because it is the big things that need the attention. If you get bogged down in detail, the Judge will follow you and dismiss the big things. You’ll just begin to sound picky and you may lose the Judge’s attention…he’ll ignore you if you bore him.
39. Have a talisman to ground you. An eagle feather or a picture of your kids in your pocket or something meaningful and tactile for you. It will help you to centre yourself and focus on what is happening.
40. You are nervous SO SAY SO. (While it may be obvious, it is worth reminding the Judge that you are in such a state. She’ll forget and wonder why you are stammering or…? )
41. BETTER A BAD TRUTH THAN A GOOD LIE. We are notoriously bad liars and we get found out very quickly. Never lie as once we are caught in even the smallest irrelevant lie, all our credibility goes down the drain.
42. Don’t be too literal. Every part of a question does not have to be responded to in excruciating detail.
Q: He was angry?
A: Well, he was kind of upset. Well, maybe not upset, just I would call it cranky” or ‘out of sorts’ but he was certainly hollering at me but it may because he was mad about something. WRONG
Q: He was angry?
A: He was angry. RIGHT
43. There are some phrases to avoid:
“I felt…” Never unless someone asks how you felt.
“To me… Never (undermines your evidence because it sounds like you are just giving your opinion.
“I wouldn’t swear on a stack of Bibles…” You just did.
“To tell you the honest truth…” You are supposed to be always telling the honest truth.
“It was obvious to me…” Never (who cares and it undermines your evidence).
“Basically…” Never before or after anything…it is an unnecessary addition and again waters down your evidence.
44. If your testimony is being interpreted, you will be interrupted for the interpretation. It is easier to relate your narrative in chronological order.
45. Watch for the need to validate the questioner. By first agreeing with the questioner (because you don’t want to make him feel bad about the question or some such thing) you will not get a chance to give your real answer.
“You have a point there”. “You could be right in what you say”. “I understand where you are coming from when you ask that question”. DON’T DO THAT
46. There is no opportunity to explain if you give the answer the questioner wants the first time…EXPLAIN FIRST

WHAT TO WEAR TO COURT

§ How you dress still has importance in our society as impressions are often made visually and immediately.
§ It is best to dress in such a way that no one will remember what you were wearing…a cross between a homemaker and an executive.
§ Simple, neutral or dark colours…no plunging necklines or non-existent hem lines or hats.
§ Too much elegance, like too much jewelry, implies wealth, independence and competes with the Judge and the lawyers.
§ Dress comfortably as the situation in itself is distressing and uncomfortable clothing will only add to the stress.
§ Dangling earrings, large bangles, anything that makes a noise is a distraction to you and everyone else. It is important not to be distracted or to distract.

REMEMBER:
This is your life.
You are the expert.
You will do just fine

*If you are going to court please call Vancouver Rape Relief and Women's Shelter - we can assist you in preparing and increasing your chances of succcess in court (604) 872-8212