Top tips for giving evidence in court.
Giving evidence can be a daunting experience – how can we help you?
Sometimes clients get frustrated with their lawyers as they expect the lawyer to tell them the questions they will be asked in court, and also what and how they should answer. However, coaching and practising questions and answers is not allowed by lawyers’ professional rules and under the rules of the court. We can, however, do our best to explain to you how things work, and how best to get your evidence across and this article will attempt to do just that.
Before you are called to give evidence, make sure you re-read every statement you have written. If you spot any mistakes, let your lawyer know as soon as possible and they will help you fix it. Errors happen and it is important that they are corrected.
When it is your turn to give evidence you will go in the “witness box”. It is very rarely a box in family courts. Most commonly it’s just a table or sometimes a stand. Ask your lawyer in advance which table is the “witness table” to allow you to familiarise yourself with the layout. Ask your lawyer to draw the floor plan of the court room for you if you think that would be helpful.
Once in the witness box you will be asked by Judge or their Clerk to either:
- swear an oath (make a religious promise on your chosen holy book) or
- affirm (make a promise to the court)
With both of these you are confirming to the court that you are telling the truth. Have a think beforehand which one you would wish to do. Speak to your lawyer if you are unsure.
In the witness box there should be a full bundle of paginated court papers, for you to use. Your lawyer will have an identical copy so do ask to see it beforehand so you can familiarise yourself with it. Some courts have started using electronic bundles and if so, you will have the bundle on a laptop or iPad in front of you. If you need help navigating either the paper bundle or an electronic bundle tell your lawyer, the judge or the judge’s clerk.
You cannot take your own notes, annotated statements or any other papers into the witness box. If you want to do this, you need to speak with your lawyer about it as permission from the judge will be needed.
Once you are in the witness box and you swear an oath or affirm, you will be asked by your lawyer to confirm the truth and accuracy of any statements you have prepared and you will be taken to each page in the bundle to check the identity of the documents. If you feel lost or if you do not know how to look through the court bundle or what to look for, ask.
Your lawyer will then probably ask you a few questions to update the court on anything that has happened since your last statement, or changes in your position, and to tell the court on anything that is missed out from your statement. That is called “examination in chief”.
All the other lawyers will then ask you questions. This is called “cross examination”.
At the end, your lawyer can ask you further questions to deal with anything unforeseen that has cropped up during “cross examination”. Don’t worry if your lawyer does not ask you any questions. That is perfectly normal.
The Judge may ask questions throughout and may have questions for lawyers.
When answering questions, either from your own lawyer, from other lawyers or from the Judge, makes sure you answer the questions being asked. The Judge or your lawyer will stop questioning if any questions are not appropriate.
If you don’t understand the question, don’t be afraid to say so. Don’t try and guess what the question was or what the lawyer is trying to get at. Ask for the question to be repeated or asked in a different way. If you forget the question, tell the Judge or your lawyer. It’s completely normal for people to forget questions in such stressful situations. If you don’t know the answer, just be honest about it and say that you don’t know! Don’t try and make it up. Don’t think that every question is a trick question. Just answer the question in the most honest and simple way you can.
When you are asked questions by lawyers for your opponent(s), don’t disagree just because they are “for the other side!” Agree with them if they are right, there is nothing wrong with that.
Try not to get irritated and angry. It is very tricky sometimes especially as some questions are very difficult and can be upsetting, but try and keep calm. Sometimes lawyers ask questions designed to get you cross, but try and keep your emotions in check and keep cool. Try to remain polite and courteous and if at all possible do not swear.
Talk slowly, clearly and loud enough so that the Judge can hear you, but there is no need to shout. Speak to the Judge, who will be making notes. Looking at the Judge may make it easier, so you do not have to face the lawyer that is asking awkward questions.
Don’t ask questions. The lawyer will have a good answer prepared and it will get you nowhere.
If you need a break, if you are tired and cannot concentrate, if you need tissues, a drink, or a comfort break tell tell the Judge, the Clerk or your lawyer. It is important that you are as comfortable as possible when you give evidence.
If you have problems reading, hearing or understanding anything at all, make sure your lawyer or the Judge knows. If you do not understand any words ask that they are explained to you. If you need some time to think and remember an answer or events that happened long time ago tell Judge. There is no point in rushing. Makes sure you say what you actually want to say with words you want to use.
Most importantly, be honest and say it as it is.
Sometimes there will be a break (i.e. lunch break or short comfort break) whilst you are giving your evidence. You will be warned by your lawyer and /or the Judge that you must not speak to anyone about your evidence in this break. It is ok to speak about other matters, however, I would say that it is better that you do not speak with anyone (including your lawyer) so that no one can allege that you discussed your case with them.
Finally, keep in mind that the judge will be watching you and observing your behaviour when you are not giving evidence, when you are listing to evidence of other people and sometimes those observations are as powerful in Judge’s mind as your spoken evidence.
We, as your family lawyers, will also give some thought to whether you might need some extra help from a witness service, or special arrangements in court, to help you.
I hope that this is a helpful overview. BH&O LLP have an experienced team of lawyers that help and guide you through the process of giving evidence in your matrimonial or child law case.
Irena Osborne, Partner