99% of the time if you end up testifying in court, it is because someone from outside is asking you to, and it is about a dispute in which we do not have an interest in the outcome. So these remarks are tailored to those types of cases. Also all of the decisions that follow should be made in consultation with the Partners Office of the General Counsel.

SUBPOENAS
It is a good idea to think about the following question before it comes up: Would you ever testify without receiving a subpoena? Her suggestion is that, unless our employer asks/requires us to, the answer should be "no". Even if you think you heard something that might be helpful she'd suggest not. One simple reason for this is that many employers won't pay you for your time unless you can produce a subpoena. A subpoena means you have to go, so can be protective in the area of confidentiality/privilege. We should not even talk with our client's lawyer without having a written copy of a release. Lawyers will often be charming about trying to get you to "just answer a couple of questions so that we can clear this all up". A subpoena also makes you appear a more credible witness. The absence of one might make you appear that you were trying to help the case of whoever requested you testify and are less than objective.

A note on the process of being served a subpoena. The Partners policy is that all subpoenas go to the Office of the General Counsel. If you receive a call from a process-server requesting that you meet him/her you do not have to go; again just instruct them to serve the papers at the legal office.

PREPARATION
Once you have been served, you will usually get a phone call from a lawyer asking to talk about your testimony. Whether or not you should is less clear-cut than the answer above and the decision should be made with the legal office. But Judge Harms' guideline is that the less important you are to the case, the more helpful it would be to do this, and conversely the more important you are to the case the less helpful it would be. The lawyer can help you anticipate what will be asked and this allows you to prepare. Keep in mind though that the lawyer has two agendas in these meetings. One is to prepare you and the other is to "script" you or subtly suggest wording or "refresh" your memory in a way that might be more favorable to his/her client.

DEPOSITIONS
The proper way for a lawyer to find out what you are going to say is through a deposition (again, you should be subpoenaed). You are under oath and this is where the lawyers can learn your testimony and whether or not they want you to appear in court. A Partner's attorney(s) should accompany you. Keep in mind that a deposition is testimony under oath, so you should refresh your memory and prepare what you are going to say. A favorite lawyer trick is to try to discredit a witness by pointing out discrepancies between what was said in the deposition and what is said at trial. Also you do get a copy of the deposition to review and sign before it is final. You can make minor or major corrections at that time.

LOBBYING THE CLERK
Once you arrive in court you can look for the judge's clerk to help you with questions or assistance you might need. This person will not be in uniform, but will usually be in front of the bench and will look like they are running things (people will be approaching him/her, she may be on the phone, etc.). Anyone can approach the clerk as long as the judge is not on the bench. If you miss the chance before the judge enters, there will likely be other opportunities when the judge takes a break. You can lobby the clerk if you have pressing needs such as a particularly important obligation that can't be changed and you want to be scheduled early, or if you have questions like "do I have time to go to the bathroom before I have to testify."

TESTIFYING
When it comes to court testimony, Judge Harms notes that it is perfectly normal to be nervous when testifying. Most people who testify are nervous. She sees it all day long. She reassures us not to worry if it shows. Judges expect this and it does not negatively impact one's credibility.

The Opening Script
Court testimony always starts off with the same script. There are a handful of questions that are always asked first. Judge Harms hopes by sharing them that you will be prepared and can then use them as an opportunity to get comfortable on the stand.

The first question is always: "What is your Name?". This one rarely stumps anyone. The second is "What is your address?" Judge Harms reassures us that unless this is a case that involves you personally (i.e., not in your professional role) you can give your business address. If the question is asked as "What is your home address?" you can ask the judge if you have to give your home address and the answer will usually be no. And then (not always in this order):

• "Are you employed?" This is a simple yes or no.
• "Where are you employed?"
• "What is your educational background?" Many witnesses get flustered by this one. They may ask for dates as far back as high school so you may want to refresh your memory about dates or jot them down. But again this throws a lot of people so don't worry about it or let it shake you.
• "What is your job?" or "What do you do?" Judge Harms suggests preparing about a 5 line job description to explain your responsibilities. One sentence is too little, much more than 5 is too much.

Questions we should not be asked and information we should not have to share: as mentioned above, home address and phone number (unless the case involves us personally), social security number, marital status, whether or not we have children. If we are asked these questions ask the judge if we have to answer.

How to Keep Your Composure
Lawyers will often phrase a question ending with the phrase "just answer Yes or No, please." That is the law. If you really cannot answer the question with a Yes or No because it is not black and white then you can say so, say something like "I can't answer that question Yes or No", and explain why. Do not abuse this, but if you really cannot answer it then don't. Be prepared that the lawyer's follow-up questions will often be "Why not?" or "What part can't you answer with a Yes or No?". But sometimes they will drop it because their intent is to keep you from explaining the gray areas.

Also sometimes lawyers will ask questions in such a confusing way that you really don't understand what they are asking. Don't be bullied into answering a question that you aren't sure you understand. It is OK to say you don't understand the question. Again though, don't abuse this by saying you don't understand when you just don't want to answer the question. It is helpful to say what part of the question you don't understand or to repeat the confusing terms or phrases to ask for clarification.

Opposing counsel may try to weaken your credibility and make you feel inadequate by challenging your qualifications, age, or experience. Don't take it personally or get defensive. You have done what you have done, and you are who you are.

The process of testifying can be tedious and frustrating. There can be many rounds of questioning. Sometimes you will be asked the same question several times. This often occurs out of disorganization rather than a plan to catch you in an inconsistency. You may start to feel like no one is in control of the process. Judge Harms reassures us that this will eventually end, and eventually the judge will step in to stop it if it has gone on too long. Though some will step in sooner than others. She encourages you to try to relax, stay calm, not take it personally and not let it lead you into poor testimony. She warns against the flip answer (it will only lead to prolonged questioning anyway), showing anger/frustration, and getting tired or careless with your answers.

Bringing Notes
If you have a subpoena ducas tecum then you are required to bring those named documents. Otherwise "travel light". Anything you bring with you and refer to on the stand is automatically examinable. So while you should feel free to bring things to jog your memory don't bring anything that you don't want to share. For example, it is probably a good idea to bring things like an index card with notes to yourself about chronology of events or your resume to help you remember dates. You might want to bring a photo copy (with legal office's permission) of your notes in the medical record. These may already be in evidence anyway and might be useful to refer to what you wrote and to confirm the accuracy of quotes attributed to you. But do not write notes to yourself in the margin. Judge Harms has seen things like "de-emphasize this" or "wish I had never written that" admitted into evidence. You probably don't want to bring your address book or organizer either. She's seen many cases where people, wanting to be helpful, say they don't remember and then volunteer that it might be in their organizer which is in the courtroom. The organizer is then admitted into evidence taking a lot of everyone's time at the very least.