The prospect of having to give evidence in Court is not one that most of us look forward to. Most people probably feel this way whether they are lay or expert witnesses. The anxiety that surrounds receipt of a Summons to Witness and the appropriate conduct money stems in a large part from a fear of the unknown, after all, most of us don’t testify in Court on a regular basis. If it is of any comfort, even the most senior trial counsel experience a little nervousness before rising to conduct an examination in chief or a cross-examination. Most judges realize that testifying in Court is a unique experience and that most witnesses, at least in the beginning, will be somewhat anxious and probably a little nervous.
When summoned to give evidence, you will be giving evidence in chief sometimes referred to as a “direct examination”, following which you will be subject to cross-examination by the opposing counsel.
Suppose, for example, you are a healthcare professional called to give evidence with respect to the care or treatment that you have provided to the Plaintiff. Generally, Plaintiff’s counsel will take you through your testimony to establish the circumstances under which you came to know the Plaintiff, the care or treatment provided and whether or not and to what extent the Plaintiff responded to that treatment.
If the nature of your evidence is such that you are required and qualified to give an opinion, be prepared to answer questions about your qualifications and expertise in the area concerning which you are about to testify. You will be asked about the patient’s history as given to you by the patient or others on his behalf, your diagnosis of the problem, your treatment and your prognosis with respect to further recovery.
The lawyer who has called you to give evidence with respect to these issues is not permitted to ask “leading” questions. A leading question is one in which the answer is suggested. Since the lawyer cannot suggest the answer, you must be thoroughly familiar with the testimony you are about to give. This can be accomplished by a review of the documents you and the others have generated which are in your possession and a pre-trial interview with the lawyer or someone from his or her staff who can tell you about the nature of the evidence that you are expected to give. By testifying on behalf of the Plaintiff, you are helping to build the Plaintiff’s case by either providing relevant background information with respect to the treatment and recovery or current information with respect to any residual complaints.
Following the examination in chief, you will be subject to cross-examination by opposing counsel. The purpose of the cross-examination is to weaken the testimony that you have just given. Defence counsel will also, in some cases, try to preview the defence by using your evidence to do so. Counsel will attempt to persuade you to agree on many points that he will argue support the defence theory. In stark contrast to the direct examination, one of the essential tools of cross-examination is that counsel is able to ask leading questions. You must listen to the questions carefully. Do not agree with a suggestion with which you disagree hoping that will shorten your time in the witness box. It usually does not.
Counsel may point out shortcomings in your testimony. For example, a failure to review all of medical reports or a failure to consider important factual history that you may not have known but 2 should have. Although cross-examination can be a grueling experience, the judge will generally step in if the cross-examiner over-steps his bounds and becomes rude or over-bearing. Here are seven points which you may find helpful if you were summoned to testify in Court:
- Be prepared. Preparation cannot be over-emphasized. Just as counsel must thoroughly prepare every aspect of the case, you should prepare thoroughly as well. That means reviewing your clinical notes carefully. Don’t be afraid to ask questions of the lawyer who has summoned you to give evidence. Counsel should be more than willing to help you feel comfortable when testifying and to provide you with some insight into the pitfalls that you will face during cross-examination.
- Be truthful. Everyone knows the old saying “Oh what a wicked web we weave when we try to deceive.” There is no need to be less than truthful. Your credibility is on the line. The best crossexaminer will have a difficult time undermining the evidence of a truthful witness.
- Answer the question that is asked of you, but seek clarification if the question is unclear. A good answer cannot be given to a question if you do not understand what the examiner is asking.
- Be courteous. Show respect for the civil justice system, the Court and opposing lawyers.
- Do not argue. You are not the advocate. The lawyer is the advocate. You are there to answer questions and to assist the judge or jury. Argumentative jousting with opposing counsel only serves to annoy the judge but can have a more devastating effect by diminishing your credibility. If you lose credibility with the judge and/or jury, the likelihood that your evidence will not be accepted is increased. On the other hand, you want to defend your position, but this can be accomplished without resorting to a shouting match.
- Concede the obvious. If the opposing lawyer makes a point during the cross-examination that is obvious to everyone, concede that point. To do otherwise, will waste the Court’s time and damage your credibility.
- You probably know more about your subject area than the cross-examining lawyer will ever hope to know and while you do not want to appear arrogant, you should take comfort knowing that you have the advantage. This often proves to be the case when opposing counsel asks one too many questions and his ignorance of the subject matter becomes apparent.
Appearing in Court can be a daunting thought. It shouldn’t be, if you have done your homework and the lawyer calling you to give evidence has made some effort to prepare you for what is to come.
Your role as a witness is an important one, otherwise you would not be called to give evidence. After you have testified, you will experience the satisfaction and pride of having participated in our civil justice system.