The Art of Testifying: A Guide for the Uninitiated

Answer this question, “Do you know what time it is?”

What was your answer? Was it, “Sure, it’s 1:30.” Or was it, “Yes.”

When we testify in a proceeding, whether a professional regulatory hearing, an arbitration, or court, our objective must always be to adhere to the following fundamental principles:

• Be prepared by reviewing information in advance. Sometimes, we testify in matters we investigated years prior.
• Be honest.
• Answer what you are asked and nothing more (the time example above being an example of this).
• Don’t embellish your answers to drive home a particular point or emphasize something you think is essential.
• If you don’t understand a question – ask for it to be repeated.
• Don’t rush to answer questions. Take your time and be thoughtful about your answer.
• Always stay calm and professional. This includes facial expressions, posture, and tone of voice. Don’t let anyone rattle you or draw you into an argument.

Let’s look at these in some greater detail…

Preparation: 

It’s vital to revisit and review all pertinent data and information related to the case beforehand. Memory can be faulty, especially when dealing with events that occurred years ago. Know the ins and outs of your case, anticipate questions, and practise your responses. Remember, the tribunal is not the place to have an ‘aha moment’ or a memory jog. Thorough preparation ensures that we convey a sense of reliability when we provide testimony. Fumbling to remember or locate information in a report can be used against you to suggest your information isn’t reliable or, worse, you are not competent.

Honesty: 

Always speak the truth. Honesty upholds the sanctity of the judicial process. Presenting false information or leaving out information jeopardizes the case and can harm one’s credibility as a witness or expert in future proceedings. Being truthful is also a matter of professional and personal ethics.

Answer the Question Only: 

It’s crucial to provide concise and direct answers. Offering unsolicited information can inadvertently introduce complications or confusion to the proceedings. Sticking strictly to the question ensures clarity and protects you from entering territory you don’t need to. Sometimes, a person cross-examining you will assess your tendency to offer unsolicited information and walk you right into a situation where you can appear confused, unreliable, or even as though you are trying to direct the narrative. None of these looks are what you want to be wearing.

Don’t Embellish: 

Our role in testifying is to provide facts and, in some cases, expert opinions, not to persuade or advocate for a particular side. By avoiding embellishments, we maintain objectivity and prevent the introduction or appearance of bias.

If Necessary, Ask For a Question to Be Repeated: 

Clarity is paramount. It’s better to seek clarification on a question you need help understanding than to provide an inaccurate or irrelevant answer. This also demonstrates due diligence and a commitment to accuracy. Moreover, it prevents you from looking careless and inattentive

Don’t Rush:

A rushed answer can lead to unintentional mistakes or omissions. By taking a moment to ponder the question, you ensure that your response is well-considered and accurate, reflecting the depth of your knowledge and expertise.

Stay Calm and Professional: 

Proceedings can be intense and emotionally charged. It’s essential to remain poised, regardless of the nature of the questions or the demeanour of the person asking questions. Demonstrating professionalism enhances your credibility. Responding to provocations or getting into arguments can detract from the central issues at hand and reduce the impact of your testimony. Remember to breathe when you’re up there, sandwiched between the anxiety of speaking and all eyes being on you. Oxygen to the brain is non-negotiable.

More on Surviving Cross-Examination:

The most stressful time in testifying is typically during cross-examination – when you might feel attacked, and it will be as pleasant as a root canal. In these situations, you must avoid the allure of sarcasm and wit. Avoid the “comebacks” – like “Is there a question in that statement?” Such comments are inappropriate as the triers of fact would likely perceive them as disrespectful. Be respectful, patient, and direct. Remember, it’s not personal, even when it feels like your character is being dissected. Everyone has a job, so focus on doing yours and knowing you will walk out of that room at some point and move on to the next case.

Here are a few tactics some might use during cross-examination and what you can do to manage them:

1. Rapid-Fire Questions: The questioner fires off a series of questions quickly, aiming to make you nervous or catch you off guard.

• Stay calm, take your time to understand each question, and answer thoughtfully. You can request that they slow down or ask them to repeat the question if necessary.

2. Complex Questioning: They may ask complex, compound, or convoluted questions to confuse you and elicit inconsistencies in your testimony.

• Ask for clarification if a question is unclear. Break it down into simpler parts and answer each segment methodically.

3. Leading Questions: In cross-examination, you can be asked leading questions that suggest specific answers, aiming to steer you towards a particular response.

• Focus on the truth, avoid being led, and provide honest, straightforward answers.

4. Attacking Credibility: You could be asked questions about your credibility, raising questions about your character, memory, or perception to undermine your testimony.

• Maintain composure and respond with dignity. Be honest about your limitations and avoid getting defensive.

5. Manipulate Emotions: An attempt to trigger emotional responses is sometimes attempted to make you appear unstable, unreliable, or uncredible.

• Stay composed and professional. Pause and breathe if needed to collect yourself before responding.

Being aware of these tactics can help you remain composed and credible. Preparation, rehearsing, and understanding the reality of testifying is helpful. If cross-examination enters into questionable or inappropriate tactics, hopefully, opposing counsel will object to stop the behaviour. However, don’t count on this; it doesn’t always happen.

The art of testifying is underpinned by being prepared, honest, demonstrating professionalism, and exuding sincerity. You should never feel like it is about winning. Your job is to share information only. When your mindset is on winning, you open the door to losing sight of the foundational aspects of your role.

So, do you know what time it is?