Organizing Your Testimony Before You Go to Court

Testimony is evidence given by a competent witness under oath. A witness is competent if he or she can communicate effectively on the stand and understands the duty to tell the truth. A witness may be called to give testimony only on evidence about which he or she has personal knowledge. Testimony is typically delivered orally by a witness at trial or in writing in the form of an affidavit or a deposition.

To organize your testimony you should first make a list of all evidence you will present for your case. Once you list the evidence, you then make a list of the witnesses who will testify as to each item of evidence. Organizing your testimony before you go to court involves deciding which witnesses you will use to introduce the evidence for your case and the preparing of those witnesses to give their testimony.

Witnesses will be used to present testimony about the evidence in your case. Thus, organizing your testimony really becomes a process of deciding which witnesses to choose to best present your evidence. Testimony will typically be given as to all facts of your case. Testimony will be used to introduce demonstrative evidence and to describe key events and facts. Since testimony is one of the keys to your case, it is critical to select and choose the best witnesses to provide the testimony.

Witness Characteristics The following characteristics should be assessed for each witness:

• Demeanor. How will the witness appear and behave in court? Will the witness be nervous or irritable? Will the witness be appropriately dressed? Will the witness answer only what is asked?
• Believability. Will this witness offer believable testimony?
• Impeachability. Is there any negative information about this witness that the other side will use to diminish the value of his or her testimony?
• Cross-Examination. How will the witness behave when cross-examined?
• Truthfulness. Can you count on the witness to be truthful?
• Availability. Will the witness be available to participate in the litigation? Will you have to compel his or her attendance?

If the answers to any or some of the above make the witness undesirable, are there any other witnesses available to provide the same testimony? Do you absolutely need this person to testify as to this evidence?

Types of Witnesses There are two types of witnesses that can be used to provide testimony:

1. Lay witness. A witness having personal knowledge of the facts or evidence about which he or she will testify.
2. Expert witness. A witness who by reason of education or specialized experience possesses superior knowledge regarding a subject about which average persons with no training are incapable of forming an accurate opinion or making a correct conclusion.

Preparation of Witnesses Although testimony will be provided by witnesses of varying levels of age, experience, communication skills, knowledge, expertise, familiarity with the litigation process, nevertheless, certain points should be covered with all witnesses when organizing their testimony. They are as follows:

• Explain the nature and theory of the case to the witness;
• Explain the significance of the witness's anticipated testimony in relation to the entire case;
• Review any evidence the witness will testify to or about;
• Make certain the witness knows to tell the truth at all times;
• Instruct the witness only to answer questions and not offer or volunteer any information;
• Ask the witness to be prepared but not to memorize testimony;
• Show the witness any documents that will be shown to him or her during his or her testimony;
• Explain how the testimony will be taken;
• Explain objections that may be made to his or her testimony and offer suggestions for how to react
• Describe the process of cross-examination and how to respond;
• Instruct the witness on proper attire and behavior in the courtroom; and
• Describe the physical appearance of the courtroom.

For a detailed discussion of preparing evidence, go to Preparing Your Evidence Before You Go to Court at AllBusiness.com.

For more information, go to the Litigation section of the Legal Center at AllBusiness.com.