Episode 60 - 10 Things You Should Do Before You Testify in Court
For most, the mention of having to testify in Court creates a high level of anxiety. Regardless of whether you are a party or simply a witness, the anticipation of testifying in a Courtroom keep you up at night. In this show, we break down the 10 core things you should do prepare like a pro. The more you are prepared, the less nervous you will feel and the better job you will do in the Courtroom.
Speaker 1: I can't believe court is tomorrow. I have no idea what to say. Maybe I just don't have to go. You know what? I'm not going. What does this subpoena mean? Well, if I have to go, I'm gonna talk about everything. Or maybe I should say nothing. That'll get me out of there faster. I am freaking out here. I've no idea what I'm doing. I wish I knew what to expect.
Todd: First bit of advice, if you find yourself in this situation, do not freak out. Many people testify and no one, at least that I've heard of, has every died by testifying in court.
Leh: Nope, I haven't heard that.
Todd: Not even injured to be honest with you.
Leh: No. Not even injured.
Todd: I've seen one person fall of the little platform because the chair rolled off ... all right in any event. Today we're gonna go over some tips that should help not only in family law cases, but also most legal cases. We're gonna talk about the top tips top help a witness better prepare for court and when I say a witness, I'm including not just the parties to the case. But also those brave souls that have been pulled into court to testify about something that they have nothing to do with. They're just people who have witnessed something or they know something relating to a case. Our hope is that we can share information that will help put them at ease and allow them to do the best possible job that they can.
Leh: Yep and hey everyone. Welcome, I'm Leh Meriweather and with me is Todd Orston. Todd and I are partners at the law firm of Meriweather and Tharp. You're listening to Meriweather and Tharp Radio on news radio 106.7. Here you'll learn about divorce, family law, tips on how to save your marriage if it's in the middle of a crisis and from time to time even tips on how to take your marriage to the next level.
Leh: If you want to learn more about us you can always call or visit us online at atlantadivorceteam.com.
Todd: Well, when we first thought about the concept of the show, we thought that we would and could discuss everything in one show but as Leh and I dove in, we realized very quickly one show would really be a disservice meaning we wouldn't be able to hit all of the topics and all of the issues related to testifying in court well. Meaning, we wouldn't be able to be as thorough as we want to be. We decided to break this topic into two shows to best help those that may be getting ready to testify in court someday soon.
Todd: The first show basically is going to be tips on how to prepare for your day in court. Then the next show is going to be tips on how to present the evidence at court.
Leh: Before we get into the tips themselves, we wanted to lay a little foundation. We're gonna put things in context surrounding a trial so that these tips have greater meaning. We're gonna explain the court process and the process during a trial as it relates to witnesses testifying. We're gonna have ... hey even if you're not getting ready to go to court, you definitely want to listen in case we've got a lot of good stories to share with you that ... well heck some of the ... one of my stories, you don't even know this yet, one of my stories can help you in all parts of life. I can't wait to tell it.
Todd: I am anticipating with ... I'm just giddy. All right, probably nervous too. One of the things that we had notices is that some lawyers don't do the best job preparing witnesses for court. I'm not throwing stones and I'm not saying that they are bad, bad people bad lawyers, lawyers have a lot on their plate. When a lawyer is preparing for trial, or a hearing, there is a lot going on behind the scenes. It's not that they aren't doing a good job. It's just that maybe there aren't enough hours in the day. They first have to prepare for their own trial responsibilities. When there's time left over, sometimes the attorney will then meet with the witnesses that they're going to use at trial to prepare them appropriately.
Todd: It's an unfortunate thing and it's not the right way to manage the witnesses and to prepare the witnesses because it can to lead to high levels of anxiety, but what we're gonna talk about, at least one of the things we're gonna talk about is how you can take control. You can't ... in essence you can't just say, well the attorney didn't prepare me.
Todd: It's for you as an individual to get prepared and that's going to include contacting, being proactive, contacting the attorney to make sure you do what is necessary to be properly prepared.
Leh: Right. Let's talk about some of the stuff that's going on behind the scenes. To follow up what you said Todd, we're having to prepare particularly first for the parties of direct examination, our opening statement, what we're probably gonna say in closing, our cross examination. We're probably reviewing all the financial records, trying to get updated financial records that'll be admitted into court. Getting all of our exhibits ready and making sure those exhibits are admissible in court because we have to follow what's called Rules Of Evidence. With those Rules of Evidence, require certain strict guidelines on the way you get evidence into court. If the evidence isn't, or the documents or exhibits aren't prepared correctly, they don't get in and it could be crucial.
Leh: The lawyer focuses on those things first. We focus on preparing, cause we like to think of the end in mind, we like to prepare our final order. What we actually want the judge to sign. The order we want the judge to sign at the end of the case. We're focusing on all those things and so sometimes ... like you said, there's only so many hours in the day so you can't necessarily get to it or it's not as high as a priority as it should be at least from the witnesses' perspective.
Leh: We want to go give this guideline. We didn't want people to think, well the lawyer didn't call me ahead of time so he must not be a good lawyer. No, no, no, that's not the case at all most of the time. It's just they didn't have the chance. That's one of the things that's going on. Keep in mind this also, when you go to court, there's one shot. You get one shot to get all these things right. So the lawyers focus on those core things that are core to him. Witness preparation ...
Todd: It should be.
Leh: ... it should be one of those top priorities and they do focus on the witness who's their party. The person that they're representing. They usually should get those people prepared, the husbands or the wives if it's a family law case or any kind of case, they spend time with that. The third party witnesses, the ones that aren't a party to the case, but are coming to testify about a fact maybe in a divorce context, maybe a neighbor saw the husband yelling at the wife one day or the wife drinking and falling down drunk while she was caring for the kids. So they're not involved in the case, but they have evidence that's very pertinent to the case.
Todd: Let me hit it from a different angle. It's not to say that the attorney hasn't prepared.
Todd: It's that the attorney has probably prepared, tried to understand what that witness is going to testify about. Try to gather the evidence that can be used and brought in through that witness. What we're talking about is the preparation of the witness. We're not talking about did the attorney do the work necessary to be able to utilize that witness at the hearing. We're talking about did the attorney take steps necessary to make sure that the witness understands the process, understands what is expected of him or her and has given the information necessary hopefully to relieve some of the anxiety that naturally comes along with somebody that doesn't understand the whole process that is now being called into court and is gonna have to sit in front of a judge. Potentially even a jury and answer questions under oath. There's a lot of stress there. Again we're going to explain some steps in how to relieve and alleviate some of that stress.
Todd: But again, we're talking more in terms of how is the attorney preparing the witness to do the job that that person is being asked to do.
Leh: So let's explain one other thing because I know one other thing that stresses witnesses out is well when am I going to testify, cause they'll get a subpoena that'll say hey ... well and the same thing for our clients ... it'll say hey the trial starts on Monday and goes to Wednesday. They're like wait, I'm going to miss three days of work? Why is it? I only have 10 minutes worth of information to say. Why do I miss three days of work?
Leh: Well here's how it works. We have to send the subpoena out for the full three days so that you're available the full three days. Now once that happens, like let's say you're the respondent, which means you're responding to the petition. You're not the one who filed the original action. Well if they're going first, you think it's gonna each side's going to take a day and a half, well maybe they take two days and so you're not entirely sure when your side of the case is going to start so you can't tell the witness necessarily hey I need you to be there on day one or day two or day three because you're not sure yourself.
Leh: We're gonna talk about how to sort of narrow down the lawyer to know when you are gonna testify. We're gonna talk about that next. I also want to talk about, a lot of times you'll get a subpoena and then you'll show ... the lawyer will show up to what's called a court calendar that may start on Monday, and not all courts are like this. Sometimes they're specially set. Other times they're not. You show up, you say hey judge my case is going to take two days and the judge says hey I've got four other cases that has said they're going to take two days, I'm having to bump you to the next calendar. All of a sudden, you thought you're gonna have to testify in two weeks but then you get a notice that you're gonna have to testify next month.
Todd: Or you show up and there's 50 cases on the calendar and 25 of them need half hour hearings and you may only need a half hour but unfortunately you may be at the tail end. I've had situations where I've gone in for a calendar call and the case that I'm on doesn't even get called until six or seven o'clock at night.
Leh: Those are the worst.
Todd: So you're sitting around because the court won't release you and you have to sit around and wait for the case to be heard. Again, it's a big inconvenience not just for the witness but for the attorney and everybody else involved.
Leh: If this is bothering you going I'm not going to show up. Forget it, I'm not showing up. You don't want to do that because the court actually has the power to issue a warrant for your arrest if you don't properly show up, I mean you don't show up pursuant to the subpoena. Literally you can have a sheriff's deputy show up at your house, arrest you, put you in handcuffs and drive you to the court house.
Todd: Sounds like fun.
Leh: Yeah. Or even your work, I've heard that happen before. You don't want that to happen. Up next, we're gonna explore more tips to help ensure that you're a solid witness when you do get to the courtroom. One of those tips will even help you keep you in the know and help reduce your anxiety.
Leh: Well Todd, we're talking about today how to prepare to be a great witness in the courtroom. We have so many times where we unfortunately because of the evidence we've got to present in court for our clients, we've got to send out subpoenas and subpoena people and so that creates a high level anxiety for witnesses. It creates a high level anxiety for our clients and how are they supposed to prepare to testify. We figured let's put together a show that gives people, whether you're a party to the case or witness whose not a party to the case, what do you need to do to get ready for court to help reduce that anxiety and make you a better witness.
Todd: That sounds amazing. I say we do it.
Leh: Well good, let's get started. I'm Leh Meriweather and with me is Todd Orston. Todd and I are partners at the law firm of Meriweather and Tharp. You're listening to Meriweather and Tharp radio on News radio, 106.7. If you want to learn more about us, you can call or visit us online at Atlantadivorceteam.com.
Leh: Well in the last segment we explored a little bit. We just went into the background of the court process to try to explain some of the frustrations that witnesses can experience and parties can experience. We're going to give some context to things. Also, understand that what's going on behind the scenes with the lawyer and what they have to do to be prepared because they really don't want to leave the witnesses out, you know hanging out there without any sort of knowledge. But sometimes they're limited on time. They go from court house to court house and don't necessary have the time to properly prepare or educate the witness.
Todd: You hit the nail on the head. They may feel they are prepared to call that witness ...
Leh: Mm-hmm (affirmative).
Todd: ... but what they haven't done, which is extremely important, is they have ignored the needs of the witness. They have ignored the fact that potentially that witness is extremely nervous about having to testify and does not feel prepared. You and I, I think I can probably speak for you on this, we've both walked into court where there is a witness called by the other side and it is incredibly obvious that they have not been prepped. They don't understand what's going on. They're not ready for the questions. They don't really understand the destination, meaning what the attorney is trying to accomplish and why their testimony is important.
Leh: You know usually those witnesses wind up ... when I get finished with them on cross examination, they wind up being on my side.
Todd: Yeah right. Yeah because they haven't been prepared. That's why we are confident and why we know this is such an important topic and a lot of people, whether you are a party or just a third party witness, have to go through this. They get called as witnesses whether they want to be there or not and it is imperative that you be prepared for that.
Leh: Yeah. Some of these challenges we talk about lawyers having, we know because we've experienced them from time to time especially when we were solos. It's just difficult when you're on your own with maybe just a paralegal to get everything done that needs to be done. Not that you do anything wrong. You're doing it ... you as the lawyer are doing an excellent job, but we can go one step further. The show is hopefully going to help people with that.
Leh: Let's give some practical tips on what people should do that either you're a party to the case and you just received notice from your lawyer that you've got a court hearing coming up or you're a witness and just been served with a subpoena.
Todd: Let me say one thing. I think the first tip that I'm going to offer is don't turn this into a blame game. Don't allow it to turn into a blame game where you're pointing the finger at an attorney saying the attorney didn't do x, y, or z.
Todd: The attorney didn't do something therefore, I'm not prepared. If you know you are going to have to go to court, if you don't feel prepared, if you need some time with the attorney, be proactive. Don't sit back and wait for things to happen to you. If you wanna talk to the attorney, make it happen. Then that way you are controlling your destiny. You are actually taking control of the situation to make sure that you prepare accordingly.
Leh: The first thing I would say is pick up the phone and call the attorney's office. If the attorney's unavailable, I would tend to ask for their paralegal or their office staff or office secretary that has access to their calendar. Say I just saw we have court coming up, with again whether you're a witness or a party, all these tips apply. Say hey, I need to meet with, either have a telephone conference with the attorney, if you're a witness you can usually do that more ... I mean a little be better but if you're a client you're probably going to meet with them. But, say hey I'm available the following three dates and times. Do any of those work for you or for the lawyer so I can meet with him or her to talk about what they're expecting me to say.
Todd: Why we're saying three dates, we do this when we communicate with other attorneys. Let's say we're trying to set down deposition dates or we're trying to establish mediation dates. Giving one date, what it does is it opens up the door for the attorney to simply say that day doesn't work for me, sorry. Then basically you've wasted time just to get the no from that attorney. So giving or offering three dates or multiple dates, that sort of takes some of that out of the occasion. It takes away the ability of the attorney to simply say nope, doesn't work for me and not offer anything in return. Here you've gone and offered one, two, three dates and therefore the attorney has to come back and go, well not that one doesn't work. Maybe this one does. It just gives options to be considered.
Leh: It speeds up the process.
Todd: It does.
Leh: I've got, I can't tell you how many clients will just say ... I got this email and say hey I need to meet with you and that's it. Okay I got to look at my calendar and everything. But then I'll have another client that'll send me, Leh I really need to meet with you. Here are three dates and times I'm available. Do any of these work for you. I may be on the run and can't respond to it, but I forward it to my paralegal and I say if any of these are available, put it on my calendar and let them know and she takes care of it.
Leh: What you're doing is again, don't blame the lawyer for being busy, be proactive and communicate three good dates and times for either a telephone conference. Don't leave a message saying call me back. Be proactive and say are you available this time to talk to me. Again, this is another behind the scenes thing. Lawyer have ... their calendars get filled all day long with meetings. Meetings, meeting, meeting and they're not in a meeting they go to pick up the phone and an opposing attorney is on the line they take the call.
Todd: By the way, nothing that we're saying is just a blanket defense of all attorneys.
Todd: There might be attorneys that just don't do what they're supposed to do.
Todd: But what we're talking about here is taking control of the situation. The attorney's managing the case and if the attorney is failing to manage it properly and manage you and your involvement properly, whether it's due to just negligence, just due to a lack of awareness or if it's because they're too busy. Whatever the reason really doesn't matter because the one thing isn't gonna change. You're gonna have to go to court. You're gonna have to testify and if you have questions and if you need to be prepared, then if the attorney's not going to do it on their own, then you need to make sure you do what is necessary to protect yourself and to get prepared.
Leh: Right and I want to say that most ... like when we send out letters for subpoenas, we tend to say hey we'd really like to talk to you so we're communicating. We're proactive so I don't want to say we're not ... that lawyers aren't doing it, we're not going to do it, I don't want the listeners to think that at all.
Leh: I want to say look be proactive here because you want to sit down, you want to talk to them, find out what they're ... we're going to get to that in a minute. Let's keep, I guess deal with the initial contact. I think one of the things you should ask for right off the bat, especially if you're just a witness, is how long do they expect them to testify. Hey what is it you're looking for.
Todd: Basic information.
Leh: Basic information. Then leave with the lawyer, their paralegal and their secretary and anybody else whose on that team for that case, your cell phone number. Then when you have their phone number, put that phone number in contacts and put the name of the law firm, you know Meriweather and Tharp or put the name of the lawyer. Here's why. I'm speaking from my personal experience. If I get a phone call and I don't recognize the number and it doesn't associate with a contact in my cell phone, I don't answer the phone.
Todd: That's funny. You never answer the phone when I call.
Leh: That one ... I don't know.
Todd: Prank call, prank call.
Leh: Just cause it says prank call.
Todd: Right. Todd do not answer.
Leh: Yeah. Don't look at my cell phone.
Todd: I agree. Going back cause I don't want to just breeze right over the issue, but the initial conversation should be why have I been subpoenaed, what are you subpoenaing me for, what do you want me to testify about, you know just gathering at the very onset some very basic information that's going to explain why they want you to step into court and testify. If you're a party obviously you know.
Leh: You know some of it, yeah.
Todd: You know some of it but also there's an expectation that of course, you're going to be having as a party, contact with your own attorney.
Leh: Yeah throughout the case.
Todd: Throughout the case and in preparation for trials or hearings. It's really where this comes into play is when you have a non-party witness who doesn't have daily or weekly contact with the attorney, you're gonna have to contact and get a lay of the land and say hey maybe you do know what it was about and why they want you to testify, but maybe not and it's for you to ask those questions.
Leh: I think on this point, at least this major tip, I think the last thing I'd leave at that is, let's say court is two weeks out. You want to call that attorney like one or two days before the hearing and ask them hey is the hearing still on? As we know, cases get continued all the time. Someone gets sick, something happens to the opposing attorney or the attorney handling the case, they have a family member ill, there's a death in the family. There's all kinds of reasons why cases get continued. Sometimes the continuance is a last minute for an emergency and they don't necessarily have time to contact all the witnesses, so don't be afraid to pick up the phone either two or one day before the hearing and just confirm that it is still on. Up next, we're gonna cover more tips that you've got to know in order to be a great witness in the courtroom.
Leh: Welcome back, I'm Leh Meriweather and with me is Todd Orston. Todd and I are partners at the law firm Meriweather and Tharp. You're listening to Meriweather and Tharp radio on News Radio 106.7. If you want to learn more about us, you can always call or visit us online at atlantadivorceteam.com.
Leh: Well Todd, we've been diving in today about how to prepare to be a great witness in court and we're talking about not just the parties to the case but witnesses that don't have anything to do with the case have no stake in the outcome per se but they have certain facts that the party that's involved in the case needs them to testify too.
Leh: You know, you and I've both experienced over the time that these witnesses they show up to court and they are rattled. They're anxious, they don't want to be there. They're missing work.
Todd: They're not prepared.
Leh: And they're not prepared. Sometimes that lack of preparation is part of the reasons they are so anxious. So we decided that we wanted to give information out there to people. Now we focus on family law, but these tips apply to everyone. To how if you get that subpoena in the mail or you get that notice of trial in the mail, this is how you get ready for court to help reduce the anxiety and increase the level of being a fantastic witness in the courtroom.
Todd: Absolutely. So let's jump in. What we're going to talk about now is what I'm going to refer to as knowing your story. Okay. We sort of touched on it before where we were talking about in your initial contact with the attorney who sent you the subpoena, make sure you understand from there what it is you're expected to talk about. Keep in mind also, if the party who has subpoenaed you is not the party that is basically ... if you don't feel they are your friend and they are calling you for some good purpose, they may not be willing to talk with you.
Todd: But especially if it's a divorce and you are friends with the wife and the wife's attorney contacts you and sends you a subpoena and says please be in court on such and such date, then obviously that attorney should be ready, willing and able to talk with you and explain what's going on. You need to at it's core, you need to understand what your story is ... meaning what facts do you know, what evidence can you testify about and basically by doing that, by knowing your story, you'll be able to go in, tell your story in a very convincing, powerful way that can hopefully help the person you're being called into court to help.
Leh: You want to tell ... when you talk to the attorney that first time whether it's on the phone or in person, you want to tell them everything. I'm telling when I say everything I'm saying the good, the bad and the ugly. Sometimes ...
Todd: Why did you point at me when you said ugly? I have a face for radio, is that what's going on here?
Leh: You do. You do. Actually I do right now because I had some skin cancer burned off my face and I have these spots all over it.
Todd: That's lovely. Thank you. Thank you for sharing that.
Leh: Maybe it's too much information.
Todd: Probably a little too much.
Todd: Tell everything, absolutely ... I always when I talk to people on the phone, the good, the bad, the ugly, tell me everything because if you tell me a lie, or if you omit something that is important, it can be a case killer. It can ruin your credibility. As a witness, there's only one currency that really matters. Credibility. If your credibility is shot, then you could have testified about 10 different things, a hundred different things, you get caught in one lie on one of those things, and it can ruin your credibility with the court so that the court doesn't believe you on any of the things you testified about.
Leh: Yeah I've got a Latin lesson for today.
Todd: Oh God.
Leh: Falsus in uno, falsus in ommibus.
Todd: I don't know what's worse, your Latin or your Shakespearean prose.
Leh: Sorry I got tongue tried, tongue twied, tongue tied. No. But that's Latin for false in one thing, false in everything. So you could have like I said, you could say 10 pieces of truth and one thing that's not so true, or not the truth the whole truth and nothing but the truth, and all those things that were true, courts gonna disregard it.
Todd: I think you've mentioned before the gotcha moments.
Todd: What we as attorneys want to avoid, I mean we want the gotcha moments if they benefit our client.
Leh: Right if we're cross examining someone.
Todd: Right. But what we want to avoid at all costs is the opposing party and counsel being able to find gotcha moments that can hurt our witnesses and clients and omitting certain pieces of information and stories and evidence, that can absolutely open the door to a gotcha moment.
Todd: I'll give you one story. Had a case, a divorce case, I represented the husband in the case and basically we're in court. I'm sitting at the table with my client. The opposing party takes the stand, is in the middle of being basically questioned by her attorney and my client, keep in mind, my client was there. We were fighting for custodial rights and he had already testified about what a great father he is and how involved he is and that's great. All of a sudden, the wife starts to talk about his drinking issues. And tells one story, oh it was a hoot. It was great. There was sarcasm there by the way.
Todd: Talks about a situation where my client had driven drunk. The car got caught on a median so that it was teetering back and forth. The wheels weren't touching anymore and it couldn't move.
Leh: That takes talent.
Todd: But hey at least his friends at the bar were able to come out and they weren't too drunk that they weren't able to then push the car off of the median, get it rolling again and then of course, you know, he was able to drive home drunk.
Todd: I can't count the number of times during that story the judge looked over his glasses at my client and, let me fast forward and say at the end the things we were asking for in terms of custody, he didn't get them.
Leh: Let me guess, when he was on the stand, he didn't mention anything about the drinking.
Todd: Not only on the stand but leading up to the court, keep in mind, it's the party.
Leh: This is your client.
Todd: It's my client. I had meeting, after meeting, after meeting. As I always say, tell me your skeletons. Tell me anything that I need to know that could come out because I need to try and steal thunder. I need to try and head it off at the pass and steal that thunder and avoid the gotcha moment and he failed to do it. I just remember whispering under my breath, did that really happen, and he's like oh I forgot to tell you. I'm like are you ... I think maybe a little too loud. I was like you gotta be kidding me. I had to sit there and endure the remainder of the story. Obviously everyone clapped when the car was off the median, no I'm kidding. But it had a real negative impact and any of the good things that he testified about ...
Leh: The fact that he was a good da- ... I mean ...
Todd: Out the window.
Leh: ... apart from the drinking problem.
Todd: No, but out the window because now all the court is hearing is a, he's a liar because how do you not talk about a potential drinking issue and the bottom line is like I said, he did not get what he was looking for in terms of custody.
Leh: He was a cow.
Todd: That's one way of saying it.
Leh: He wasn't a buffalo.
Todd: Look are you talking about me? I ate a little too much at Thanksgiving but you know, that's a little rude.
Leh: This is the cool story I was holding back.
Todd: This is the story, calling me a buffalo?
Todd: Fanta- ... I can't wait to hear the rest of this.
Leh: So in Colorado, in the plains of Colorado it's the only place you can actually watch cows and buffalo interact at the same time.
Todd: Oh my God this is like Wild ... we get a Latin lesson and now its Animal Kingdom. You get everything on this show.
Leh: That's right.
Leh: Colorado has the Rocky Mountains going through it so storms come over the mountains and hit the plains. Well when they come over, the cows will turn and run from the storm. Well you know they're not that fast but what's happening is as they run with the storm, they're in the storm twice as long cause as the storm is going over them, they're running with the storm.
Leh: Buffaloes on the other hand, turn towards the storm and head straight into it so they're in the storm half the time, actually less than half the time more like a quarter of the time, than the cows are. Even if the cows stayed still, they would only be in it for a certain amount of time but instead they run with the storm so they stay even longer. But the buffalo will be in this storm half the time because they're running towards it so it's going over them as they're running under it.
Todd: Alright, I have eaten my last bison burger. I'm just ... alright you weren't calling me a cow or a buffalo. I appreciate that. That is actually very cool and I gotta tell ya, it goes right to the heart of what we're talking about.
Todd: If you try and pretend, run away from the issues, pretend like the issues don't exist ...
Leh: You make it worse.
Todd: ... you're asking for trouble because it will come back and bite you. You have to just head it off. You have to run into the storm. Had he, let's use my example. Had he told me ahead of time about that story, I could have done a little bit of a soft sell. I maybe would have brought it up. Have you had any issues with drinking, are you dealing with those issues? Well I'm in AA meetings and I know I have a problem but you know what, I haven't had a drink in x number of days, weeks, months or years. That would have been a much better presentation than what I experienced, which was not fun at all.
Leh: Right. You've got to head it off. You said head it off at the pass. You have to run straight into it. There's two points where information gets out. Let's call direct examination where your lawyer asks questions of you if you're the party and a witness if you've been subpoenaed. Then there's cross examination where the other side gets asked questions. You want the bad stuff to come out on direct examination.
Todd: That's right. The opposite, that's where the gotcha moments occur.
Leh: Yep. We love those on cross examination.
Todd: When they happen to the other side.
Leh: That's right.
Leh: Hey up next, we're going to continue to go into more of knowing your story.
Leh: Todd I know I threw you off with that buffalo story, but I love that analogy.
Todd: I'm not taking your calls now. I am mooing mad.
Leh: Hey everyone, welcome back. I'm Leh Meriweather with me is Todd Orston. Todd and I are partners at the law firm Meriweather and Tharp and you're listening to Meriweather and Tharp radio on News Radio 106.7. If you want to learn more about us, you can always call or visit us online at atlantadivorceteam.com.
Leh: Today what we're talking about it how to prepare to be a great witness whether you're a party to the case or have been subpoenaed to testify on behalf of someone else. We're giving the background. What do you need to do before you walk into the courtroom. We're actually making this a two-part show. You definitely want to tune in next week because the next show is gonna be about how do you handle yourself in the courtroom. We're gonna give you some great tips there. You don't want to miss this. But we need to finish going into understanding your story so you know how to prepare.
Todd: All right so let's talk about another tip I think is incredibly important and of course like I said, if you've been subpoenaed by the opposing party or by somebody that you don't favor or that you're not supporting in the legal effort, you may not be able to do this. Meaning the counsel for that person may not be willing to talk with you.
Leh: I will say, please go ahead and call ...
Todd: Oh absolutely.
Leh: ... I subpoenaed someone and they called me up and when I did talk to them, the testimony they were going to give was not going to be favorable to my client so I canceled the subpoena so the person didn't have to come to court and be inconvenienced because they called me and talked to me about the case so don't be afraid to call the opposing counsel if you know that like they're opposing your fri- ... if you've been called on the other side.
Todd: Right. So the next tip is going to be, ask the lawyer exactly what he or she wants you to say. I don't mean wants you to say meaning they're going to feed you what you're gonna say. But meaning, what is their destination. What are they trying to accomplish and how do they think that your testimony is going to help move the needle and help their case. So basically contact them and be very clear. Be very clear. Let's just leave it at that. What do you want me to testify about because I know a, b, c, d, e, f, g, do you want me talk about a, b, c, do you want me to call everything, you know. But what do you want me to talk about because then in your mind, you can start to prepare yourself by fully understanding the story and what parts of it you're gonna really want to hit and highlight at court.
Leh: I think there's three parts to what you just said there too because I want ... first off, the lawyer may be thinking your gonna give some pieces of evidence that you don't have because sometimes we get a client say, well Julie is gonna say that she saw this and this and this and this and you talk to Julie and she's like I didn't see that. You want to get clarity that's why you say what are you expecting me to say. So you want to get clarity cause they may be expecting you to say something that you're not gonna say because you're telling the truth. That's what we want you to do. We want you to tell the truth. That's the first component.
Leh: The second component is the lawyer may be only looking for b out of a, b, c, and d. They don't need a, c, and d because they have someone else testifying to it that's a stronger proponent of those facts they're looking for. If you find out, hey the lawyers just looking for you to say b, then okay great then you're going to be quick to the point, the judge is going to appreciate that. You're not going to waste time talking about something that's not relevant or what's called cumulative to other evidence and you can get out of court.
Todd: Or you're not going to say something that could potentially hurt the case.
Todd: Because too many people they will go in and have them prepared. They talk, they talk, they talk, they talk and attorneys will play little games like they will ask a question, they get a very quick answer and then they sit there and they're quiet. They're looking at the witness and the witness, because they are nervous will want to fill that silence, that void and answer further to give more information and we love that because usually that's where the gold is. You just wait and then all of a sudden more information starts coming out and usually it's not beneficial.
Leh: We're gonna talk in the next show about how to answer questions so don't want to dive too much into that.
Leh: The other question you want to ask the lawyer too is what do you think the other side is going to ask me? So that way you're ready for what you think, what opposing counsel's thinks that the other sides gonna cross examine you on, so you could also get ready for that.
Todd: In furtherance of that, in terms of your preparation, if the attorney has the ability and/or the time, you can ask to ... on the phone or in person, potentially do a practice direct examination and cross examination. Look at the attorney, say to the attorney and say hey, why don't you just question me. Tell me what the questions are going to look like and maybe let's pretend. Let's do some role playing and pretend like you're cross examining me. Go ahead. Cross examine me and tell me what I'm in store, you know ...
Leh: What's in store for me.
Todd: ... what's in store for me. So that I know and when I suddenly get, basically people think they're being attacked on cross examination and it doesn't seem so much like an attack.
Leh: Yep cause they're ready for it.
Todd: They're read for it.
Leh: So the next thing you should do, is review all precious statements and this applies to everyone. Anytime you're coming into court, you want to review previous statements. Sometimes you may have signed an affidavit. So you want to go in and read that affidavit before you walk into court. You want to make sure that nothing's changed since you wrote that affidavit cause if it has, ... here's the thing, any prior statements can be used to what's called impeach you. To make you look not credible if you said something contrary to what you've said in the courtroom. That really goes to police reports. If there's ever been a police report that you were a witness to that a police officer asked you questions, you want to read that police report. Here's what's happened. You come into court and you say hey I saw a, b, and c and someone says well Officer Joe said that you saw something else. You don't want to be surprised by that. You want to be able to say I know ... on your direct just avoid that gotcha moment.
Leh: Here's what I saw. I know the police report says I said something else but I didn't say something else. He must have just misunderstood me. Here is exactly what I saw.
Todd: Yeah, well you're heading it off. As a former prosecutor, we used to do that with police officers all the time because what we didn't want to have happen is have a police officer, who since the time of writing that report has probably written one, two, three hundred new reports to not remember what it is that they wrote in this particular report.
Todd: I know how important it is to prepare a witness and especially if there is an existing statement to go over line by line with that witness what it was that was said. Again, impeachment is not a good thing.
Todd: It sounds like a happy word right? It's got the word peach.
Leh: And mint.
Todd: But it's not a good thing and so you don't want contradictory evidence to be presented because that goes to what we were saying also. It can destroy your credibility.
Leh: Another thing, if you've given a deposition in the case, you want to reread your deposition. When I say previous statements, I'm also including letters, emails, text messages. If you have sent a text message if you're a party, I mean you need to be aware of what's in your letters, emails and text messages. If you are not a party in the case and you texted a party, you need to know what those text messages said because you don't want to say something contrary. If you've made a social media post that has anything to do with one of the parties, particularly if its in a negative way, I can't believe the way Joe acted in the party yesterday. You need to know what's in those social media posts.
Todd: What about audio recordings?
Leh: Right. You need to be aware that a party may have talked to you or anybody related in this case. They could have been recording you. Just be aware of those things. If you know there was an audio recording, if the lawyer you call says I have an audio recording, you need to listen to it.
Todd: How about let's jump into the next tip. You have to have thick skin. Especially if you're going to take the stand and be subject not just to direct examination but to cross examination, you need to have thick skin. What I mean by that is ask the attorney if there's anything about you as a witness that you should be concerned about that you need to change. Any behavioral traits that you have that could impact for good or bad the judges decision. That could be, you know we're talking about ... cause lawyers, keep in mind, maybe reluctant to say that. They may meet with a witness and there's something about them and, I mean we've all done this to some degree where we walk out of a meeting and we're like this is going to be difficult.
Leh: Yeah maybe what I need to say ... I want to rephrase what you said cause some people will say I don't have a thick skin. Don't be afraid to ask the lawyer is there anything you're concerned about me as a witness. When I say anything, we're talking about anybody language tics I may have, the tone of my voice when I answer your questions, is there anything about my demeanor, is there any way about, you know some people walk with a cocky attitude.
Todd: We've had witnesses, I've had witnesses where factually the content that I knew they were going to talk about, was fantastic and it was going to help my client but because of the attitude that they had, their demeanor, their body language, I was scared to death to put them on the stand and at times I chose not to because I thought that their actions would speak louder than their words.
Leh: Yep. You know what, speaking louder than words, what's screaming at me right now is that we are out of time.
Todd: It's amazing.
Leh: Where did the time go? Gosh almost we could have put this in three shows almost.
Leh: Hey everyone, thanks so much for listening to the show. We hope you got a lot out of this show and you definitely want to stay tuned to next week. We're gonna give you some tips on how to handle that cross examination in the courtroom, how to make sure you present the case in the best possible light whether it's your case or a friend of yours and you're just a witness. You definitely want to check this out.
Leh: Until then, you can always read about us online, atlantadivorceteam.com and you can even email us questions at [email protected]
Speaker 4: This audio program does not establish an attorney/client relationship with Meriweather and Tharp.