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White Law Office, Co. > Posts tagged "trial"

Giving Testimony: High Anxiety Part 2 – The Number One Mistake

Welcome to Part Two of my series of observations on the high anxiety of giving testimony. In this part, the number one mistake made by witnesses. Giving testimony is really a fairly simple procedure. Attorneys ask questions and witnesses give answers. Most questions are about something the witness has experienced. So, a good pattern of questions is similar to a journalist conducting an interview: who, what, when, where, how and why? Simple, right? Not so much. Especially with the "why" question, witnesses often commit the number one mistake in testifying: they guess. Whenever a witness says: "I guess," "I would imagine," "I'm pretty sure," "I suppose," or "from what everyone has told me," you know the witness is heading for trouble. Most of the time the last answer "what everyone has told me" is not allowed by the hearsay rule, but if you are an attorney whose witness is guessing, any objection you make in effect says "Sorry, Your Honor, my witness is an idiot and doesn't know what they are talking about." This is not a good position to be in when it is your witness testifying, much less if it is your client testifying. Why is guessing an answer the number one mistake in testifying? Because most of the time you will guess wrong! It never fails. Most guesses given under oath are just plain wrong. Trust me on this. I have had almost 40 years' experience of listening to bad guesses. Good trial attorneys know that. This is why if it is...

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Giving Testimony: High Anxiety Part 1

As a lawyer and judge, I have been around people giving testimony for about 40 years. Every time I reach the end of a trial or a round of depositions (before trial testimony given in lawyers' offices), I promise myself to write about the experience that I have seen so many go through (and occasionally gone through myself). Here are some of my observations about testifying for good or ill. The anxiety begins with the Oath or Affirmation. Anxiety, often high anxiety, is built into the process of testifying. Giving any testimony requires that you raise your right hand and swear or affirm, to tell the truth, the whole truth and nothing but the truth. Swearing an oath to testify truthfully is in the form of, "Do you solemnly swear the that your testimony shall be the truth, the whole truth and nothing but the truth?" to which the witness responds, "I do." The purpose of the oath is to impress the witness with the solemnity of the trial and summons thoughts of divine retribution for lying under oath (which is also a seldom prosecuted crime called perjury). While I have never seen bolts from the sky strike down a perjurer, I have from time to time moved my chair to put greater distance between me and a witness that I highly suspected was lying. You know, just in case. As an alternative to taking an oath, a witness may "affirm the tell the truth, the whole truth and nothing but the truth...

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What a Trial Lawyer Knows About Trials

What a Trial Lawyer Knows About Trials Posted by Thomas D. White in Litigation Often when I sit down with a new client to discuss how they feel they need to sue someone or someone has sued them, we first have to work through the shock of why they are in a lawyer’s office. We need to know where lawyer’s offices and doctor’s offices are but somehow we hope we will never need them....

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