By Judge Brian Addington, Gray
I love telling stories, whether they’re real or made up. I found great pleasure in creating stories for my son when he was little. Often, it didn’t have to be very serious or exciting. One of his favorites was about him bouncing a ball. He wanted me to tell it again and again.
We all can relate to a good story and effective storytellers. They draw us in, captivate us, and make us ask for more.
My Dad is a great storyteller. For years, he ran a camp, and part of his duties was sharing stories about the lives of missionaries. These stories had to last five days, and Dad was always exceptional at getting the campers involved and wanting more. He’d build up the story to an exciting place, and then change expression, look at the kids, and say, “And, you’ll have to come back tomorrow to find out what happened!” The crowd would often roar with both excitement and disappointment at having to wait.
As a judge, I’ve seen that not everyone is good at telling stories. They want to get to the end before giving the details, or they give so many details or irrelevant information that the ending is less than anticipated. Or sometimes they forget whole parts of the story. It’s like a badly edited movie that leaves me scratching my head.
So below are a few tips for how to tell a story in court, whether you’re the injured worker, an employer or its witness, or an attorney.
First, be prepared to tell the story ̶ all the relevant parts of it. Rehearse it, think about it, make sure it’s truthful and complete, and when it’s your time to testify, use your own words and tell it just as it happened.
To counsel, on this point, please prepare your witness to testify, but don’t put words in their mouths. Don’t lead your witness, but let them know in advance where the open-ended questioning is headed and why. And listen to the judge. If you’re going in a direction that’s not advancing the case, and the judge suggests that you are, don’t stick to your scripted questions. Be flexible.
As a general rule, it’s all right to have notes. Not that the judge wants a self-represented worker to read from them. But if it’s something that can refresh your memory, then notes are okay. Just remember the opposing side can look at those notes if they request it.
What’s not okay, attorneys, is continually “refreshing the witness’s memory” by reading off documents such as medical records or deposition snippets, and asking if the witness agrees. Trust me: the judge has read the medical records and anything else in evidence and knows the weight to give it.
Don’t get flustered with objections. For self-represented parties, the judge will always try to explain the basis of the objection and the ruling in plain English. Listen, and ask questions if you don’t understand. Try to think of another way to say it, or let it go.
Hearsay is probably the most common objection. “The doctor told me…” is usually hearsay. But if your back hurts, it hurts; you can tell the judge that and even show the judge where it hurts. You don’t have to say you’ve got radiculopathy. The judge has read the medical records.
Along these lines, as a general rule, the worker can tell the judge what “his or her boss said,” as an admission by a party opponent. The judge will decide the weight to give it.
For counsel, on this point be prepared to argue the objections, to help the judge rule. Hopefully you’ve anticipated what might be objectionable before coming to court. Ask to make an offer of proof if you need to bolster the record for appeal.
But also, think strategically about when and if to object. Sometimes it’s better to let a self-represented worker stray a little into objectionable territory to keep things moving. If you’re thinking, “This isn’t relevant,” the judge is probably thinking that, too, but letting the witness have his or her day in court. If it’s not hurting your case, let it go.
Listen closely on cross-examination. If you’re the witness and you don’t understand the question, ask for it to be repeated or restated. If a question requires a yes or no response, it’s okay to give that response and then explain the answer; you don’t have to be boxed into a one-word response.
Attorneys, keep the questioning brief if possible, and avoid complex or compound sentence structures. Don’t argue. And again, if the judge suggests you move along from a particular area, do so.
A few words about emotions. In a perfect world, all witnesses would remain calm on the stand. In the real world, people raise their voices, resort to sarcasm, or cry.
Look to the judge for what to do when emotions are running high. Object to argumentative questions or statements. Take a deep breath. Drink some water. Ask for a tissue or a break when necessary.
Attorneys should never raise their voices in court to intimidate a witness. If a witness refuses to answer a question or is evasive, ask the judge for help, or ask a better question.
Write effective pre-trial filings. Affidavits can be helpful because you can take time to write out the story and make sure it’s complete. Briefs are effective as well. They’re not evidence, but they can tell a judge what happened and why the worker should win or lose the case.
Tell the truth. Judges don’t want to hear made-up stories. Know that the judge will remember whether the witness has changed, exaggerated, or minimized the story, or failed to recall facts that other witnesses readily stated.
In conclusion, judges want the whole, truthful story: the facts of a case without exaggeration or minimization. We want the news, the facts, the story, straight up, so that we can make a thorough and correct decision. You’ll do a better job of giving us this if you’ve done your part preparing before coming to court, and if you stay focused during the hearing.