Sunday, November 8, 2009

Being a Witness

Welcome to the hardest job most people will experience in the legal system - being a witness.

From twenty-two years of conversations, I think it is safe to assume that most people do not realize that a witness' testimony is evidence.  The Indiana Rules of Evidence devotes a whole article to witnesses.  Yes, words are just as much evidence as pieces of paper.

The following are some areticle I ran across recently about witnesses and testifying.  Good points in all of them:

There are lots of seemingly good excuses for a potential witness not to bother with a lawyer. Consider the following:

1. "I'll Just Tell My Story"
Nonsense. You are walking into a strange and unnatural environment, with a great deal at stake, where everyone else is experienced, comfortable, and prepared. You cannot adequately prepare for this challenge without professional help. Period.

2. "It's Too Expensive"
True. Both in time and money. It takes a lot of time, and legal fees today are extraordinarily high. If the witness has to pay a lawyer (I say "if" because an employer or other party may pay the fees; be sure to ask), it adds a new dimension of pain to an already burdensome experience. However, the real issue with cost is always relative. What's the alternative? Here, saving time and money up front by being a witness without counsel or without preparation can cost dearly later in time, money, and heartache.

3. "I Didn't Do Anything Wrong"
This is the toughest and biggest misperception. Most people think that you only need a lawyer if you've done something wrong, particularly in the witness environment. Counsel has to understand this misperception, then help the witness to get around it.

There are times when a lawyer serves as a "defender" of a client who has done something "wrong." However, the reach of investigations, litigation, and other inquiries today is incredibly broad, and definitions of what is wrong vary just as widely. A client needs help in navigating the mess. Given the harm that can come to people as a result of these inquiries, a witness is foolish to enter the world alone.
The following statements are guaranteed to not impress or convince a judge or jury in court:

1. "I have all the records at home/in my truck/at my office, etc. and I can bring them in." Sorry, but you need them right now and you can't stop court to go get them.

2. "Everybody knows that ______ is true." That's not acceptable proof. 'Everybody' needs to testify.

3. "I got it off the Internet, so I know it's right." Think again!

4. "I can get letters from lots of friends/co-workers/relatives/neighbors saying that." Have you heard of hearsay?

5. "I could have gotten the records/pictures/witnesses, etc., if I had just known that I needed them." You should prepare in advance with your lawyer and follow his or her instructions about what you need to bring.

6. "I have it all on my computer." If your computer's not with you today in court, it does no good.

7. "I can bring in lots of witnesses to prove that." If so, you should have brought them in.

8. "They're all lying about me." Sometimes conspiracies happen, but more often it seems likely to be true if a number of live witnesses come into court and say the same thing.

9. "I may have plead guilty, but I didn't really do what they said I did." Sorry, but you can't argue that for a guilty plea. If you were convicted after a trial, you could say you didn't do it and that the jury was wrong, but that still won't get you anywhere. A conviction is a conviction.

10. "Do I have to answer that?" I love to hear that from an opposing witness. That always grabs my attention. 99.9% of the time, the answer is "Yes". I want to find out what you're scared of.

Bottom line: You lose credibility and waste time by using these answers. Anyone about to testify in court should talk extensively with the lawyer for your side to prepare for your testimony. Remember, this is more than a simple conversation over coffee. There are rules and formalities imposed by the court system and you must observe them.
As a geek leader, I'd like to say that there's an easy solution to the schism problem, but there's not. Especially if you're a new geek in the company, people won't trust you (since personal credibility must be built). Step on a few land mines (or have a few old pieces of equipment fail), and you have to start from zero again and again. The only way to build credibility is to maintain personal consistency and do your very best to fix the systems or software to eventually be able to maintain technical credibility. It's frustrating, but necessary.

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