Things to Remember if You Have to Testify

Posted on Monday, April 04, 2011

If you are involved in a family law case, you might have to testify as many as three or four separate times in various proceedings. There are simple yet very important things you should remember about giving testimony. If you don't, you could find yourself in major trouble.

There are several possible scenarios in which you might find yourself giving testimony. Temporary hearings are common in divorce cases. These relatively short hearings are fast-paced because they usually last no more than two hours and the Court needs as much information as possible to fashion temporary rules between the parties. A deposition is an investigative proceeding in a conference room where the attorneys ask the parties questions before a court reporter, without the judge present. Finally, you might testify at the final trial in your case.

There are hundreds of things to remember about your case, but let me tell you two general tips that might seem obvious, but they come up all the time.

First, tell the truth. Just about any lawyer will tell you they have either caught someone lying in court or they have seen it happen. I have done it and seen it, so I know from experience this happens more than you might think. People get nervous. They think they can outsmart the lawyer asking the questions. They think they can get away with it. Whatever the reason, I say don't ever, ever try to do it. I always dicuss this with my clients the day before they have to testify; I tell them again when we're walking into the conference room or courthouse; and just before they take the stand, I look at them and make sure they remember.

If you lie, it will come back to haunt you and it could absolutely ruin your chances of prevailing in your case. Credibility is a huge factor when you testify. If you are caught lying -- and you almost always will be -- your credibility factor goes away in a hurry.

Also, you will be under oath during your testimony. Lying under oath is perjury. Perjury is a felony, which means if you are convicted, you can get locked up for a long time. Do you want to go to prison because you think the judge won't know you're lying?

The good news about telling the truth: sometimes the truth is privileged. Some common privileges include the attorney-client privilege, the right against self-incrimination under the Constitution, and the physician-patient privilege. Your lawyer can explain if any privileges apply in your case. In order to benefit from a privilege when testifying, though, you must let the Court know you invoke it, which leads to my second point.

Always give your attorney an opportunity to object. When a seasoned lawyer is cross-examining you, it will be hard to remember if you should invoke the attorney-client privilege or some other privilege, so you should give your attorney a chance to do it for you. Then you can tell the opposing attorney you agree with your lawyer's objection.

Once you have been on the witness stand for a while, the initial nervousness will wear off, and it will become easier to speak as if you are in a normal conversation, answering questions immediately after they are asked. Don't fall into this trap. Give your attorney a chance to object.

Hopefully, your case will be resolved quickly, without too much dispute, and you won't have to testify. If it doesn't and you find yourself about to take the oath and give testimony, remembering these two simple points can help you avoid making some serious mistakes.

By: Jeremy P. McNinch