Lessons on How to be a Witness in Court

Sometimes topics come from obscure places.  I have been reading Diane Atkinson’s biography of Caroline Norton, a 19^th century founder of Britain’s women’s movement and a key actor in changing laws that held children to be the property of their fathers.

Norton was considered one of the most talented writers of her day. Alas, she married a fellow who treated her poorly and at one point sued her claiming she had an adulterous relationship with Britain’s prime minister, Lord Melbourne. When that trial went poorly, Norton’s husband took her three children away from her and let his mistress take charge of raising them. This prompted Norton to lobby for passage of what became the Custody of Infants Act of 1839, a milestone in womens’ rights to raise children.

But, I digress. Norton and her husband never did divorce. They signed an agreement by which her husband would pay a certain amount of support each year. In 1855 a dispute emerged over whether he also had an obligation to pay her bill to a carriage maker for repairs. This also went to court and the biography offers pieces of the trial transcript.

During her examination Mrs. Norton was brutal in her condemnation of her husband’s conduct. Her responses revealed the duplicitous approach to his legal duties and that the real victim was the tradesman who fixed her carriage and wasn’t being paid. Unfortunately, the answers she offered were not responsive to the questions being posed. Judges are used to people becoming snarky and to drifting off the direct topic of the question. What they sometimes offer is: “Witness, your lawyer will provide the analysis and the sarcasm in closing. I need you to just provide the FACTS related to what you did or did not do.”

You are not co-counsel with your lawyer. You are there because you witnessed events that had legal significance. The more clarity and information you can provide on what you saw or heard, the better the witness you will be. Then there is the matter of demeanor.

1. When called to testify, acknowledge the judge. This requires just a nod of the head, especially if the judge has spoken after you were sworn as a witness.
2. While in the witness box, adjust your gaze to a place halfway between the judge and the lawyer questioning you. If you just look to the judge, you look like you are “sucking up.” If you just face the lawyer asking questions, you appear to be ignoring the judge. That’s not good either. So, face half-way between.
3. If you hear the word “Objection”, just stop talking. That word means there is a dispute over what you are saying. That’s between the lawyers and the judge to sort through. Rarely can you solve their problem with your own “contribution” to a fight over evidence.
4. Listen to the question. Really. So often, in conversation when you stop talking it is inferred that I can say what I want. That’s not how trials roll. So, if asked what time you take your son to school, that’s not an invitation to describe the entire morning routine. Your lawyer can follow up if he/she needs more detail.
5. When examined by the other lawyer, it’s OK to disagree but do it politely and without argument. If you think you are being badgered, you can ask counsel to repeat the question. If you are asked to answer “Yes or no” you have a right to explain or you can respond “I can’t answer that with a simple yes or no.” You can be firm without being rude and when you become rude or abrupt you are losing credibility with the judge. If your lawyer is paying attention, they will be there to try to intervene, especially in cases where the other lawyer tries to cut off your answer to a question.
6. When in the witness box, you don’t get a break to speak with your lawyer. And typically, if there is a break in the case when the other lawyer is asking questions, you may be told you cannot discuss your testimony with your lawyer. You can discuss the Superbowl, politics, religion, artificial intelligence or whatever. Just not your testimony.
7. If you are handed documents or other exhibits while testifying, leave them in the witness box when they are done. It’s the lawyers’ job to figure out what becomes of them.
8. Anger. Even justified anger, never helps. It signals that you are prone to lose control and that doesn’t play well in a judicial setting.

Like every other party to litigation, you have a lot to say. But, courts need the facts before they can be persuaded by argument. We shall allow Mrs. Norton the final word as she summed up her position in her dispute with her husband. Addressing her husband’s lawyer in court she said:

              “…I am ashamed for your client if he does not feel ashamed of himself. My own [income] will perfectly suffice now that I know Mr. Norton can cheat me. And I have no doubt that my friends will assist me …when they learn that a man who calls himself a magistrate, a judge and a gentleman [her husband]  can also cheat a poor tradesman. I do not ask for my rights. I have no rights-I have only wrongs.”

A great closing. Her friends in the courtroom are reported to have cheered. I suspect the judge was less impressed. As Joe Friday used to say on Dragnet: “Just the facts, ma’am.”

After writing this, I shipped it to a friend who is a real-life trial judge and solicited his comments from the perspective of one who presides over trials every day. He “judiciously” responded that the attorneys are often a part of the problem as well. They like to broaden the scope of hearings to bring in the evil conduct or character of the opposing side when it has nothing to do with the matter before the court. It occurred in our 1855 Norton trial because Mr. Norton still could not let go of his anger that his wife may have been unfaithful 20 years before.  So, his lawyer tried to bring it into the lawsuit over the carriage repair. This stuff annoys judges and with good reason. We don’t have that part of the transcript but one suspects the court may have responded: “Counselor, tell me she slept with the wheelwright who fixed her carriage and I’ll grant you some room to question, but otherwise the court cares not a whit whether she slept with the House of Commons or solicited the Lords when the question is whether a tradesman is due money from your client. Please move on to something relevant.”