Dealing with Litigaton— Advice for the Witness
LAWS AND LEGISLATION
A firefighter’s frequent exposure to the type of incident that gives rise to litigation, makes it inevitable that some day you will be called upon to act as a witness in a court action. By understanding some of the procedures involved and what is expected of you as a witness, you will be less fearful of the exalted chamber called the courtroom and become a more effective witness.
When two parties cannot agree on the facts of an incident, a trial results. It is the job of a jury (or the judge when there is no jury) to resolve the discrepancies in the two sides of the story. The jury decides what actually happened based upon the evidence presented in the courtroom. Just as the players in a sports event determine the outcome by their performance, so too the witnesses determine the outcome of the case by their testimonies. The attorneys act as the coaches directing the witnesses in their presentations as the judge referees, making sure that the proceedings follow accepted rules.
A witness’s involvement in litigation does not begin the morning he appears in court. For a witness, the case should have three phases: investigation, discovery, and trial.
Investigation
Unless you are served with a subpoena, you are not required to speak to anyone about the event. Refusing to cooperate, however, slows down the judicial process and is unfair to the person who has been injured by the occurrence and may need your help. Many lawsuits and criminal prosecutions start or end unfairly because a person refuses to “get involved.” Only when the full story is known can justice be served.
During the investigative stages, the witness will be quizzed by the police or fire investigators, private investigators, claims adjusters, the potential litigants, or even the attorneys for the parties. This may be as far as the prospective witness will have to get involved in the case, since most matters are settled without going to trial. It is still important that your statements be carefully considered and thought out. Truthfulness and accuracy are important because just as anything a defendant says “can be used against him in a court of law,” any inconsistencies in your statements can be held against you in an attack on your credibility during an actual trial.
Make it clear to the investigator just what information is from your own observation and what you have learned from others. Do not incorporate what others say as your own observations. If you realize that you have little to offer from firsthand information, give the investigator the names of others who might be helpful. This will avoid a waste of both the investigator’s and your own time.
Sometimes an investigator will gain information in a surreptitious manner. Be cautious of “firehouse talk” when strangers are around. Even your casual statements about an incident may have an effect on your credibility as a witness in the courtroom.
Often a witness is not aware for a year or more that a particular event is the subject of litigation. An incident report that states merely the location, time, and the equipment used would be woefully inadequate to the investigator and of little help to the witness, who will want to refresh his memory about the event. Forms such as the National Fire Protection Association (NFPA) Fire Incident Report and its ancillary forms should be used religiously by every department.
Discovery
Despite what you may have seen on television, surprise witnesses or evidence is usually not allowed in the courtroom. Discovery is a legal procedure where the two sides to a case exchange information. Once one of the lawyers has decided that he wants you “on his team,” the other lawyer is usually entitled to know who you are as well as what you are going to say. If the attorney wants to know more about you and your testimony, he will subpoena you for a deposition.
At the deposition, your sworn oral testimony is recorded by a court reporter. It frequently takes place in the office of one of the attorneys, but it may be anywhere, including the courthouse. A judge or jury is not present.
The attorney for the “other side” usually begins the questioning. During the course of a deposition, it may seem like the attorney is trying to find out more about you than about the incident that is the basis for the lawsuit. This may be absolutely true, as his first priority is to ascertain your weaknesses which might make your testimony less believable. Certain information might prove invaluable in discrediting your testimony, such as:
- Do you have a financial interest in the matter?
- Are you friendly with any of the parties in the case?
- Do you act frequently as a witness?
- Have you a criminal record?
- Do you have sensory or mental handicaps that would affect your observations and recollection of events?
Since the discovery and investigative stages overlap, the attorneys may be able to gain valuable new information from even a casual remark made during the deposition. Answer the questions truthfully -but don’t volunteer information. The attorney conducting the inquiry is well trained and well paid to ask the proper questions. If you don’t know an answer to a question, say so. State only what you know, not what you “think” or “guess.”
During the deposition, an attorney may object to a question. After the objection is voiced, you will usually answer the question. The only time you don’t answer the question posed to you is when you are specifically instructed not to by one of the attorneys.
The questioning attorney is entitled to all “discoverable” information. That means that at the deposition you will be able to testify to things that you will not be able to testify to at the trial. The attorney may ask questions regarding what other people said or did. He will be probing not only for your version of the story but for differences in your testimony as compared to previous statements that you and others have made. The attorney is likely to produce the statements that you made to his investigators or that you made during the department investigation. He may ask you to elaborate on those statements but might not give you a chance to clarify discrepancies.
If you expect to testify about measurements or other data, bring your notes. Accuracy is important. If you realize you made an error, make sure you speak up and correct yourself. If you don’t do so during the deposition, the statement will come back to haunt you later on the witness stand.
Once the first attorney finishes asking his questions, the other attorney or attorneys will have an opportunity to question you. Since the first attorney would have been quite thorough, this additional questioning is usually very brief and directed at clearing up any confusion caused by your testimony.
If you are named as a witness in a criminal matter, it is unlikely that you will take an active part in discovery since an opposing attorney usually needs a court order to force direct contact with the witness. In the criminal matter, it is likely that you would be subject to more intense interrogation of the investigative nature mentioned above.
Most cases are resolved after the attorneys have had a full opportunity to evaluate how strong a case they have, but before trial. When a trial is necessary, it may not take place until long after a witness has forgotten the details of an incident. Criminal trials are frequently held within one year of an arrest, but most civil matters are not tried for three or more years after the occurrence that gave rise to the lawsuit.
A few days before the trial, the attorney calling you as a witness will prepare you for your testimony. When you attend this meeting, bring all your notes and any other information that you have regarding the matter. The attorney will make every attempt to tell you the order in which he will be examining you. Since he will be restricted in the way he asks questions in the courtroom, he may present the actual questions he intends to ask and explain the type of response he needs to the question. Be wary of the attorney who attempts to change your version of the story. Remember that by this time you have already told your version of the events several times. Be absolutely truthful and stick to your story. Credibility is greatly damaged when the attorney for the “other side” asks his favorite question: “Tell me. Firefighter Jones, which version is the truth? Are you lying now or did you lie then?”
By the time you take the stand, you will have already told your version of the events several times. Be absolutely truthful and stick to your story. Credibility is greatly damaged when the attorney for the “other side” asks his favorite question: “Tell me, Firefighter Jones, which version is the truth?”
The attorney who suggests the use of certain words for your testimony is not necessarily trying to change your version of the story. He may be changing inadmissible testimony into testimony that is acceptable to the court. He has gone over your story as well as that of other witnesses dozens of times. You may have reviewed your version hundreds of times. You will have only one opportunity to tell it to the jury. Following his advice will make that single attempt more fluid and understandable to them.
A person who has extensive skill, knowledge, or experience in a particular field might be called as an “expert witness” to give an opinion as to a certain set of facts when the lay person is not expected to be able to draw a reasonable or proper inference from those facts. Only the expert witness is allowed to give an opinion or draw conclusions.
The firefighter called as an expert witness is usually a chief or other officer with prior courtroom experience. The newcomer to the courtroom will usually testify as the observer whose firsthand knowledge of the event will aid the jury in making a decision. This witness testifies only to those things that he personally observed through the senses. Statements that others make are called hearsay, and the witness is usually prohibited from repeating them in court.
Your actual appearance in court will be preceded by a subpoena that states the date and time you are expected to appear in court. Frequently, many attorneys will also enter the statement “on telephone call” or some similar phrase. Since delays make it difficult to estimate exactly when your testimony will be needed, this device allows an attorney to call you in on a few hours notice. Remember that if you do not appear as instructed by the subpoena, you are subject to arrest and possible fines and imprisonment for contempt of court. The subpoena may order you to bring along various documents or other evidence. Even if it does not, take your notes along anyway since they may be helpful in your testimony.
Dress as neatly as possible. A suit or sportcoat and tie are most appropriate. Neatness shows that you are interested in the proceeding and the jury will sense this; they will find your testimony more credible. If you are appearing as an official spokesperson for the department, you will be able to appear in your uniform. Some courts or judges, however, will not allow the wearing of a uniform because it may unduly influence the jury. Check with the attorney handling the case before you show up in uniform to make sure you won’t be turned away at the courtroom door.
Arrive early. You will usually be able to await your turn to testify in the courtroom. This will allow you time to get familiar with the surroundings. Relax. Try to feel at ease. Get used to the tone and the demeanor of the attorneys, especially the attorney for the “other side.” You may never have seen this attorney before. He may be an attorney who only appears in court, not at the investigation or deposition. He may be extremely familiar and talented with “courtroom tactics.” Hopefully “your” attorney has prepared you for the type of questions asked by this attorney. He will be asking “leading” questions that may suggest a yes or a no answer, such as “Isn’t it true that…” or “Didn’t you once say He may seem to be badgering or confusing the witness by asking the same question several times seeking a change in the testimony. The more relaxed you make yourself, the less success he will have with these tactics.
When you finally get the opportunity to take the stand, you will be given the oath. When asked “Do you swear to tell the truth . . .,” respond with a clear and resounding “I do.” Anything less may indicate to the jury that you are a meek, timid person who is unsure of himself and what he is about to tell them.
Neatness shows that you are interested in the proceeding and the jury will sense this; they will find your testimony more credible.
The attorney who called you as a witness will be the first to question you. In his “direct examination,” the first questions will be simple, giving you an opportunity to relax and gain your composure. These questions will cover information such as your name and address, your experience as a firefighter, and the date and place involved in the case. The first questions will also “qualify” you by demonstrating that you are physically and mentally capable of being a witness and that you have information to give the jury. Whatever question is asked, think for a moment before answering. Make sure you understand the question and give your response clearly and distinctly. If you don’t understand a question, ask for it to be repeated or rephrased.
Remain objective in your testimony. Don’t be argumentative or give an appearance that you would like a certain decision to be made. Testify only as to what you know from your own observation and do not volunteer information. If the question requires a yes or no answer, answer it that way. If the attorney wants an explanation he will ask for one. Keep your eyes on the attorney when he asks the question but address your answer to the jury. The attorney already knows the answer, it is the jury that must learn what happened that day.
During the course of the questioning, the judge might interrupt to give you or the attorney instructions or to ask questions. Once again, address your answers to the jury, not the judge. If an attorney interrupts with an “Objection,” stop what you are saying and wait for the instructions of the judge or the next question. Unlike the deposition where you testified about anything and everything, the courtroom follows strict rules of evidence and admissibility.
Avoid the use of technical words and jargon. Words such as wye, Siamese, and flashover are part of your everyday vocabulary and the attorney has probably become totally familiar with them. The jury, however, must be educated. They should have no knowledge of the subject matter before the case. Such words have no meaning to the jury and would only confuse them.
If you stammer or seem unsure of your testimony, your effectiveness as a witness will be diminished. No one is expected to remember everything he ever learned or observed. Bring your notes and documents with you. While it is important that you be accurate and consistent with previous statements, memorized information seems rehearsed. Worse, you may forget data critical to the case. As a technical part of your testimony approaches, most attorneys will suggest that you “refresh your memory” by looking at your notes. If the attorney does not make the suggestion, don’t be afraid to ask if you can refer to your notes. The notes need not be your own but may be someone else’s, a newspaper article, or any other piece of paper. Remember that you are testifying from your own observations. The use of the notes is limited to refreshing your recollection. It is not the contents of the papers that you are testifying about, it is your own personal observations. Bring the original documents if possible and leave a copy of everything at home or at the office. If a document or note is submitted into evidence, it will not be returned to you.
If you honestly cannot remember information, say so. Even though the most believable testimony is independent recollection without any visible aid, you risk committing perjury or seriously damaging your credibility if you try to bluff your way through the testimony. If your notes were prepared at or near the time of the event, they may be admitted directly into evidence. This is where a complete and accurate incident report may be invaluable to the jury in its quest for justice.
After direct examination, the opposing attorney will have an opportunity to “cross examine” you. His principal job is to discredit your testimony. He is allowed to question you regarding your prior, out-of-court statements, your contact and familiarity with the parties to the case, your character, your sensory defects, and even your religious beliefs.
During cross examination, be consistent but don’t be unwaivering. The unwaivering witness may appear to be directing his efforts to a specific preconceived outcome and will lose credibility. Be firm in your statements. It may be quite difficult when you are facing a line of questions addressed solely at demonstrating that you are a liar, but be courteous and remain calm at all times. The attorney might go into topics not covered on the direct examination. Answer all his questions truthfully, but again without volunteering information.
After the cross examination, the first attorney will be able to ask questions again. These questions will be addressed to clearing up any confusion or to repairing damage done in the cross examination. He will not be able to open up any new topics. When he is finished, you will be able to pack up and go home. Your involvement in the case should be over. No matter what the jury decides, you can have pride and satisfaction in the fact that you have contributed to making the American system of justice work.
