You’ve been served a subpoena to appear and testify in a lawsuit in which you are not a party. The subpoena may direct you to appear at a law office to give deposition testimony or may direct you to appear in court to give trial testimony, and may request that you bring certain documents with you. In either event, you are upset that someone (sometimes a sheriff) has appeared at your home or workplace with a subpoena and apprehensive about what will be expected of you when testifying. You know very little about the case and what you do know happened so long ago that you don’t trust your recollection.

Your concern about a sheriff serving you with a subpoena in front of friends and neighbors is an understandable one. You might think that the sheriff’s appearance will cause others to believe that you are "in trouble with the law." You should understand that the party calling you as a witness was required by law to serve you with a subpoena to assure your appearance and testimony. Service of the subpoena was not designed to embarrass you, but protect the parties to the lawsuit.

If you have questions about the subpoena, the scheduling of your testimony or the underlying litigation, you should call the attorney for the party who has subpoenaed you. The individual’s name and telephone number is usually found on the subpoena.

Deposition Testimony

Witnesses are frequently asked to testify twice in connection with a single matter. The first time you testify may be on deposition. Deposition testimony is typically given in a conference room setting rather than in a courtroom. The purpose of a deposition is to find out what you know about the case. The lawyers for the parties, possibly the parties themselves, and a court reporter will be present.

You will take an oath to tell the truth. The court reporter will record all the questions asked by the lawyers and all responses given by you. The deposition may be taken many months or even years before the case is actually tried. The purpose of the deposition testimony is to record your recollections of the events at a time when they are relatively fresh in your mind. Afterward, testimony will be typed in a deposition transcript after it is given, and you will be given the opportunity to read and sign it. If you are at all concerned that the court reporter may have improperly recorded your testimony, you should exercise your right to read and sign the transcript and correct those areas in the transcript where your testimony is incorrectly recorded.

Your Day in Court

The second time you testily may be in a courtroom before a judge and possibly, a jury. You may wonder why you have to testify a second time when you have already given your deposition testimony. You should understand that the judge and jurors were not present when you gave your deposition testimony. In most instances the rules of court forbid the use of your deposition without the use of your live testimony. Remember that the lawyers investigate the case thoroughly and know what testimony they must present. If they judge your testimony to be essential, they will call you. Otherwise, you will not receive a subpoena.

Being a Witness is Serious Business

Remember that your role as a witness in the judicial system is an extremely important one. Without witnesses, judges, and jurors could not fairly decide cases. Your lack of cooperation as witness or your refusal to testify could lead to a miscarriage of justice. You must take your responsibility as a witness seriously and use your best efforts to present a clear and accurate picture of what happened.

DO’s and DON’Ts For Testifying in Court or on Deposition

1. Do go over the facts of the case in your mind prior to testifying. Separate what you remember from what you think you remember. You may want to speak with the lawyer who intends to call you as a witness. There is no obligation to discuss your testimony with any lawyer, but many witnesses find such a talk helpful.
2. Do answer as truthfully, accurately and completely as possible. Don’t answer a question with half-truths or let your judgment about how the case should come out affect your testimony. Remember that you took an oath before testifying to tell the truth. A failure to tell the truth amounts to perjury.
3. Don’t attempt to answer a question unless you fully understand it. Ask the lawyer to rephrase the question. Don’t guess at what you think the lawyer is after, make the lawyer explain the question to you.
4. Don’t try to respond to a question if you don’t know the answer. If you don’t remember the answer to a question, say so. No one expects you to know the answer to every question and no one expects you to remember every detail about an event that happened many years ago.
5. Don’t attempt to answer a question to which an objection has been made. When a lawyer makes an objection or the judge makes a comment, stop talking. Wait for a ruling by the judge. If he overrules the objection, you should answer the question. Listen to each objection made, so that you understand the basis for the objection.
6. Do correct any mistakes made in answering a question immediately.
7. Do speak slowly and loudly so that all concerned can hear your testimony.
8. Do dress neatly and take your responsibility seriously.
9. Don’t argue with he lawyers or the judge. Don’t allow them to make you angry. Be cool, calm and attentive.
10. Do make estimations if a question requires you to do so, but be clear in your answer that your testimony is only an estimate.
11. Don’t guess. It is okay to provide a reasoned or thoughtful estimate, but do not simply guess or speculate as to an answer.
12. Do state that you have discussed your testimony with others before testifying if in fact you have. There is absolutely nothing wrong with discussing your testimony with lawyers, parties, police or investigators beforehand.
13. Don’t be offended if you are told not to listen to testimony given by other witnesses in the case. There is an important reason for this rule. No one wants your testimony to be colored by the testimony of other witnesses. You will be expected to give your version of what happened rather than to parrot someone else’s version.

Being a Witness © 1986, MSBA, Inc. Revised 1993
All rights reserved. No part of this work may be reproduced in any form without written permission from the Maryland State Bar Association.