October 16, 2023

DOs and DON’Ts of Being a Trial Witness in a First-Party Property Case

Acting as a trial witness can be a daunting task. It can be exceptionally challenging when you are testifying in a contentious first-party property case, when huge dollar amounts are on the line.  

First Steps: 

Before you can understand how to properly testify in a trial, it is important to understand what the goal of a trial is. A trial is the final meeting of parties to a dispute, each side presenting their points of view through documentary and testimonial evidence. The evidence is heard and evaluated by an independent party. Once all of the evidence is presented, a fair and impartial decision in the matter is decided.   

The independent party, or the trier of fact, is typically either a judge or a jury.  A judge is an individual person, usually a former lawyer, whose function is to sit and listen to disputes.  A jury is a group of individuals (called jurors) ranging from 6 to 12 citizens (usually 6 in a civil trial). These jurors are not usually lawyers and have no knowledge or affiliation with either side of the dispute.  

This information is essential when preparing to be a witness, but we can’t stop there. Now that you have all of the background information, you are ready to learn the DOs and DON’Ts to confidently testify. 

DO! 

Make Eye Contact: 

Anytime you are having a conversation with another person eye contact is important.  Eye contact shows you are interested in the topic; it shows respect for the other individual and it makes you appear more truthful. The same rule of eye contact should be utilized while testifying.  Make constant and significant eye contact with both the person asking the question and your target audience, the jury or judge. 

When a question is asked, look intently at the person asking the questions; however, as you begin to answer turn your attention to the judge or the jury.  If a jury is deciding your case, look directly at the jury as you answer.  Make sure to scan the jury box, looking at all of the jurors as you answer your questions.   

Be Sincere in Your Answers:   

Judges and jurors analyze every word spoken during a trial.  It is important to speak with sincerity when answering questions and be genuine. Do not respond in an overly dramatic manner or cry when it is not authentic or appropriate. If you answer questions in an over-the-top way, the judge or jury will be less likely to take your testimony as believable.  It is okay to be emotional, provided that your emotions are genuine and not unnecessarily dramatic. 

Be Concise: 

During a trial, you are most likely going to be asked questions by lawyers representing each side. Listen to the questions carefully. Lawyers are trained in the art of question asking and typically ask questions that are specifically worded. Once you have listened to the question, answer the specific question that has been asked. Do not offer additional information, or ramble in your answers.  

Be Professional: 

From your attire to your answers, it is important that you behave in a professional and respectful manner when testifying in court. How you dress when you are a witness should be the same way you would dress for a professional business meeting. Shorts, tank-tops, jeans and sneakers are generally frowned upon by the judge. If you want the judge or jury to take you and your testimony seriously, you should dress in a serious manner. 

DON’T! 

Be Argumentative: 

Testifying is about credibility. You need to be believable as a witness. If you are believable, the judge or jury will be more likely to think your testimony was credible. One way to lose credibility is to be argumentative as you answer questions. Regardless of your personal beliefs or affiliation with one side of the dispute at trial, answer only the questions asked. Do not be argumentative when answering.  Attorneys can be short, antagonistic and sometimes rude while they are questioning witnesses; no matter how rude the attorney is, or how angry the attorney tries to make you, do not become aggressive in your response.    

Guess at Questions When Don’t Know the Answer: 

As you testify you will be asked hundreds of questions. During preparation for trial, you may meet one or both attorneys to discuss the questions you will be asked. You will know the answers to most of the questions, but there will be some you do not know.  If you do not know the answer to a question, do not guess. You gain credibility if you are honest and admit when you do not know the answer to a particular question.   

Lie or Exaggerate: 

People lie while testifying at trial all the time. You should not! As a witness, if you are caught lying, you could be charged with perjury. Perjury, or lying under oath, is a violation of criminal law and can subject you to incarceration. Another, even more important reason not to lie while testifying is that your lies may taint the outcome of the trial. A trial is the search for truth. A large part of the decision is based upon the testimony of the witnesses. If the witnesses are dishonest or exaggerate their answers, the judge or jury could reach the wrong decision.  

Testify without Speaking to the lawyers first 

Before you testify, make sure that you meet with the attorney representing the side for which you are advocating. In this meeting you will be able to go over the specific questions you will be asked and what to expect on cross-examination. In addition to discussing specific questions that you will be asked; this meeting is crucial to learning proper courtroom procedure and etiquette. This meeting should address issues about what to wear, where to sit, who to look at and even what to do if you need to use the restroom while you are on the stand. 

Conclusion  

Testifying as a witness in a first-party property case is undoubtedly a challenge, but armed with the knowledge of the DOs and DON’Ts we’ve covered, you can confidently step into the courtroom. Remember, your credibility is the cornerstone of your testimony. Make eye contact, be sincere, and maintain professionalism throughout. Avoid becoming argumentative, guessing at answers, or, most crucially, lying. Your honesty and authenticity will not only earn you the respect of the judge and jury but also help ensure a just outcome. 

So, as you prepare to take the stand, keep these principles in mind. Your role as a witness is pivotal in the pursuit of truth and justice. By adhering to these guidelines, you can be a credible and compelling witness, making a meaningful contribution to the proceedings.  

Are you a claims professional looking to apply these invaluable tips in your upcoming trial? Take the first step towards courtroom success and secure the justice you seek. Contact me today to schedule your free consultation.

John S. Riordan
Partner, First-Party Property Insurance Defense
Kelley Kronenberg-West Palm Beach, FL.
(561) 684-5956
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