Your Right Hand...

A lot has been said and written about the importance of maintaining good documentation in defending termite damage claims. However, while this is critical, it is only half of the equation. Equally important is the testimony that will be offered by your witnesses. Even if a pest control operator has an excellent case, this will not guarantee a favorable result at trial if his/her witnesses do a poor job in presenting their testimony. Remember that when you testify at trial you are your company. Therefore, how you perform will determine in large part how well your company (and its insurer) does at trial.

TELL THE TRUTH. The most important thing to remember about testifying is to always tell the truth. Be accurate in everything you say. Understand that the best way to cause a judge or jury to disbelieve all your testimony is to make an inaccurate, exaggerated, unfounded or false statement. This is true of the most minor matters as well as major matters. Even one answer shown to be untruthful can sink all of your testimony. The judge can instruct the jury that a witness who has falsely testified on a material matter may be regarded as having falsely testified on other matters as well, which is only common sense. It matters little to the jury whether the false or inaccurate testimony concerns a minor matter or an important one.

While there may be only one "true" answer to a specific question, there is a great deal of flexibility in how the "truth" of your case can be presented to a judge or jury. Evidence that is helpful to your side of the case can be stressed to the judge or jury even though it might not involve the "critical" issue in the case. On the other hand, evidence that might be "bad" for your company can be presented in a way that minimizes its harmful effect. The key to accomplishing an effective presentation of the "truth" is preparation.

PREPARE PROPERLY. There are several key steps to preparing properly:

Know the "game plan." Before appearing to testify at trial, you and your attorney should outline a "game plan" for your defense. In other words, it should be clearly established why your company should not be responsible to this plaintiff for his or her damages. Once the "game plan" has been defined, you and your attorney must then thoroughly prepare to carry it out. This involves two distinct elements. First, the substance of the testimony i.e., what will be said must be determined by you and your attorney. Second, you must be prepared for the experience of testifying that is, you must understand how the testimony will be presented to the judge or jury.

Know your file. Before you testify at trial you should know your file documentation better than anyone else who will testify. You should conduct a complete review of that file and know every strength and weakness that exists in it. Do not be afraid to talk about any weakness in your position with your attorney beforehand. It is better for you to raise those points at an early stage than have them appear for the first time at trial or during the course of a deposition.

DIRECT EXAMINATION. Before appearing to testify at trial you should know every question that your attorney will ask you and how you will answer each one. The answers should be reviewed by you and your attorney until you are totally confident in the answers that you will give and how they will be given. For example, if you cannot independently recall checking the chain wall of a particular home during a pre-sale inspection that occurred three years earlier, you should not offer that testimony. No termite inspector can realistically be expected to remember in detail each and every inspection that he has ever done in his entire career. Instead, through adequate preparation, you and your attorney might decide on a different approach, such as the following:

Question: As part of your routine inspection procedure, do you normally check any chain wall foundations for evidence of termite infestation?

Answer: Yes, I do.

Question: Do you know of any reason why you would not have inspected the chain wall on the home in this case?

Answer: No, the wall on this home was completely accessible for inspection.

Question: If there had been evidence of active infestation present on the chain wall, would you have noted it on your inspection report?

Answer: Absolutely. Without thorough preparation, you might end up offering testimony that stretches not only your memory but also your credibility before the judge or jury. The following line of attack might thereafter come from the other attorney:

Question: How many years have you been inspecting homes for termites?

Answer: Eight years.

Question: How many homes have you inspected per year on average during that time span?

Answer: One hundred and twenty-five.

Question: So, if the home in this case was inspected three years ago, then you have inspected approximately 375 homes since then?

Answer: I guess that sounds about right.

Question: And you expect this jury to believe that today you can specifically recall every detail of your inspection of this particular home even though you have conducted hundreds of inspections since that time?

Answer: Yes.

CROSS-EXAMINATION. You and your attorney should attempt to anticipate every question that the other side will ask you and review exactly how you will answer those questions. This is extremely important; probably the most critical phase of any trial is cross-examination. Most judges and juries know that direct examinations are fairly well orchestrated. Accordingly, they wait for cross-examination to determine whether the testimony given on direct examination truly holds any water. For these reasons it is extremely important that you be prepared to respond appropriately when cross-examination occurs.

For example, an attorney might ask you whether it was true that your company did not treat the bath access opening on the second floor of a home where termite damage was later found. You could answer that question by simply responding: "Yes, that is true." However, this would leave the judge or jury with the wrong impression regarding the adequacy of the original treatment. If this question had been anticipated in advance, a more appropriate response might have been, "Yes, that is true because the label directions for this chemical and state rules and regulations prohibit my company from applying any chemical above ground-level unless there is evidence of active infestation. And in this case there was no evidence of active infestation in that access opening at the time we originally treated the property."

This type of "counter-punch" response is something that must be thought out and rehearsed in advance and not left merely to chance at trial.

TRIAL TESTIMONY. When preparing to testify, PCOs should understand some basic rules for performing well in court. These include:

Understand the question. Listen to the question. Pay attention. You cannot tell the truth if you have not heard and understood the question. If you do not understand the question, you must ask the questioner to make the question crystal-clear before you answer it. Many problems arise from failure to listen to the question. This often happens when the witness assumes that he knows what the question is and stops listening before it is finished. Watch out for ambiguous references to "he/she," "they" or "it," and for vague time references. Here's an example.

Question: She says that you were there an hour later when she did this. Is that true?

To answer this truthfully, you must know what is meant by "she," "there," "this," and "an hour later." It is not a sign of ignorance, weakness, or lack of cooperation to require reasonable clarification of questions. It is a sign of ignorance and a casual attitude to the truth to answer questions that you do not understand. Know that lawyers often ask confusing questions because they are thinking ahead to the next question, are not using notes, have confused or misstated the facts, have misunderstood your earlier answers, or are intentionally ignoring your earlier answers. Think before answering. You are not required to know everything. Do not say "no" if the true answer is "I do not recall." "No" means absolutely not. "I do not recall" means what it says. The latter answer may well be more accurate than the former.

Question: Have you ever met a person named David Jackson?

This question refers to your entire life and is so broad that it is doubtful that you can truthfully say "no" if the correct answer is "I am not sure."

Do not let the examiner control the rhythm of the testimony by giving quick, rapid answers to rapid questions. Do not be lulled by a sequence of quick, short questions, e.g., four in a row to which the answer is a simple yes and a fifth throwaway question at the end to which the answer is not a simple yes. Take your time to answer even the simple questions so you will remember to take time with the more complex questions.

Question: John Doe was employed by your company?

Answer: Yes.

Question: And he was a termite sales representative?

Answer: Yes.

Question: And he prepared this contract for execution by the homeowner?

Answer: Yes.

Question: And he signed this contract on behalf of your company?

Answer: Yes.

Question: And he authorized the change in the contract form?

Answer: (Be alert not to give an automatic "yes" answer).

Don't accept opposing counsel's statements. Do not accept a "fact" merely because the attorney questioning you says it. While the fact may be accurate, if you do not know that, you cannot truthfully accept it.

Question: You discussed the moisture problem with Mr. Smith when you reviewed the inspection report with him, didn't you?

While you may have discussed "the moisture problem" with Mr. Smith, if you do not recall having reviewed the inspection report with him, say so. Do not react to counsel's disbelief or skepticism and decide that you know something that you do not. There are endless possible questions to which you do not know the answer. Do not let counsel make you feel that you are hopelessly uninformed or concealing something because you truth fully answer those questions "I don't know."

If the true answer to a question is "no," that is the truth no matter how many times and in how many different ways the question is asked. You can expect opposing counsel to repeat questions on points when he or she is not pleased with your answers. Do not feel that counsel's repetition somehow requires you to give a different answer unless, of course, you decide to change your testimony because it is not accurate.

Analyze documents carefully. If a document is important enough for the attorney to use in questioning you, you should give it the same importance and scrutinize it carefully before you answer. Do not assume that you know the document already. For example, if you are asked to "look at" a letter before answering questions about it, do just that and take all the time you need. Look at:

• The letterhead, if any.

• The date.

• The person to whom it was sent.

• The recipient's full address.

• The name of the author of the letter.

• Persons to whom copies are noted.

Only after examining these parts of the letter should you read carefully the content of the letter. If you follow these rules, you will indeed have "looked at" the letter and you will be prepared to tell the truth in answering questions about it. You cannot do this if you simply glance at the letter and ask for the question. Do not be rushed.

Carefully review photographs and diagrams. Do not acquire "new knowledge" from photographs and do not interpret diagrams you do not understand. Again, this is simply a matter of telling the truth. Photographs are notoriously unreliable for distances or measurements. Do not interpret diagrams which you did not prepare yourself or which are not familiar to you.

There is a great difference between testifying about your own knowledge of something which happens to be shown in a photograph or diagram and attempting to interpret the photograph or diagram.

Question: Look at this photograph. The termite damage extends all the way from the header to the sill, doesn't it?

Answer: I can't tell the extent of the termite damage from this photograph because there is paneling covering a portion of the wall in that area.

If you know the true extent of the termite damage from your own knowledge, you can give it. If you do not know it, do not try to estimate it from the photograph. Do not agree that a photograph or diagram is "accurate" until you know what part or parts of the exhibit the lawyer is talking about.

Question: Does this photograph accurately depict the condition of the wall at the time the inspection was conducted?

Answer: This looks like the wall that we are talking about, but I cannot truthfully tell if it is the same wall without seeing more of the room.

A simple "yes" to the above question would have assumed that you are sure that the wall in the photograph is the same wall you have been testifying about and not some other wall. If there are no identifying marks on that wall, do not assume that it is the same wall.

The judge or jury is entitled to your reasonable estimates on matters, but you are not telling the truth if you speculate or guess. If you have a basis to give a reasonable estimate of a distance, date or time, do so, but do not guess. Do not get pushed into giving a precise answer by the other attorney simply because he asks you the same question in a number of different ways.

Question: How long did it take you to conduct your inspection?

Answer: With a house of this size, about an hour.

Question: Could it have been only half an hour?

Answer: My best estimate is about an hour.

Question: Could it have been only 45 minutes?

Answer: My best estimate is about an hour.

Question: But you are not absolutely certain, are you?

Answer: Not absolutely. This inspection took place over two years ago.

Question: Well, then it could have been less than an hour, couldn't it?

Answer: An hour is my best estimate. Anything else would be a guess.

If you expect a question on an important matter concerning your recollection and you have carefully considered the matter, e.g., the time estimate in the foregoing sequence, you can truthfully state, when asked the question, that you expected that the question would be asked and that you have given the matter a lot of thought and that your best estimate is one hour. This shows that you did not make your estimate casually. That, too, is the truth.

Do not argue. Lawyers argue. Witnesses testify. Answer questions truthfully without arguing with the attorney asking the questions. Arguing will distract you. You will be diverted from telling the truth and you will not focus on the question. Remember that the attorney may indeed be trying to upset or confuse you, and if you permit yourself to be confused or upset, you cannot tell the truth. If a pitcher in a baseball game permits himself to be upset, he cannot perform well, which is why the opposition tries to upset him. This does not mean your answers must be devoid of emotion or conviction. It does mean that you do not want to let your emotions control you and cause you to say things you do not mean.

Let the questioner be the one who is upset. Know that if the questioner harasses or bullies you, it is because you are a strong witness and your testimony is frustrating the lawyer. If opposing counsel interrupts your answer before you have finished, politely ask to finish it and, if necessary, ask the judge whether you may finish your answer. Expect interruptions from opposing counsel when he does not like your answer. If the truthful response requires your complete answer, you must resist the interruption. Stay above the battle. Let the jury focus its anger on the lawyer by your contrasting patient and reasonable behavior.

Objections. Your attorney can object if opposing counsel asks an improper question or is harassing you. But he will not necessarily raise an objection at every single opportunity. The jury should hear the case from you, and not from your attorney, as much as possible. If opposing counsel is argumentative, but you are handling it well, your attorney may not object, even though he can. The jury will identify with you and will not welcome the examiner's antagonism as long as you are testifying truthfully.

If you are called by the opposition. If you are a defendant, or a representative of a defendant company, the plaintiff may call you as a witness as part of a plaintiff's case before your attorney has a chance to call you as part of the defense case. This is sometimes referred to as being called "under the rule." When this occurs, the ordinary rules of cross-examination apply. Your attorney should discuss this possibility with you and you should not be surprised if it occurs.

BEHAVIOR AT TRIAL. What follows are some practical tips for your personal behavior at trial.

Creating a professional image. One of the primary goals in preparing the defense of a termite damage case is to make the pest control operator's witnesses appear as professionals. Accordingly, you should come to trial dressed appropriately, i.e., in the clothes that you would ordinarily wear in the performance of your professional responsibilities.

In order to enhance your professional image, you should thoroughly answer all questions with respect to your qualifications and experience. Most witnesses tend to downplay the importance and value of their own past experiences. You should be thorough in describing the training you have received and in discussing the experience you have in the termite field. Remember, you are trying to impress the judge or jury with the extent of your knowledge, qualifications and experience. Do not shortchange yourself or your company.

Maintaining eye contact. Look at the jury, or, if there is no jury, look at the judge. You are testifying to the jury or the judge and not to the lawyer questioning you. While you will occasionally look at the examining attorney, do not forget the jury. It is important that you do this even though your natural tendency is to watch the examining lawyer at all times. Your eye contact should be with the jury and not with the attorney. Speak up and speak clearly and confidently. You must be heard by every member of the jury.

Personal demeanor. Unless you are excluded by order of the court at trial, your attorney should arrange to have you hear one or more other witnesses testify before you do, so that you may become familiar with the courtroom surroundings and procedures. When in court, do not display any reaction to the testimony of any other witness. The judge and jury will not welcome signals of your opinions.

Do not take medications before trial, or, if you must, be sure to tell your attorney what effect it may have on you. Do not chew gum or candy while testifying. When you are on the witness stand, do not look at your attorney for help in answering a question. The jury wants your answer, not his, but if you need a document from your attorney, ask for it.

Understand that you, not the examining attorney, are the centerpiece. You are there to tell the facts to the jury, not to convenience the lawyer. The jurors want to know what you have to say. However, jurors do not like a witness who acts too important to be bothered with having to answer questions, who resents that something he says is open to question, who is pompous, who is always right no matter what, who is sneering or disrespectful to anyone, including opposing counsel, or who, worst of all, says things that insult the intelligence of the jury. This does not mean that you are to be meek or timid. When you are sure of something, let the jury know that. That is the truth.

DEPOSITIONS. Your role at a deposition is to answer only the questions asked. This is not the trial. The judge and jury are not present to hear your side of the matter. You will likely be asked no questions by your attorney at your deposition unless, perhaps, a few questions are necessary to clarify some ambiguity. Do not be concerned that the "whole story" is not told at your deposition. The deposition is for the exclusive benefit of the party asking the questions, and that party is entitled to learn only the information asked.

If you follow the rules listed above, you will be well prepared and will testify confidently, comfortably, accurately, and patiently. The judge and/or jury will know that you are doing your best to tell the truth, and that impression will be conveyed by your general demeanor and body language as well as by your words.

Quentin F. Urquhart Jr. is with the law firm of Montgomery, Barnett, Brown, Read, Hammond & Mintz, located in New Orleans, La. He presented this paper at the 1995 Louisiana Pest Control Association Winter Conference & Trade Show.

ACKNOWLEDGEMENT

The author wishes to acknowledge that the foregoing article was derived in part from "Checklist For The Witness," which appeared as part of an article written by W.B. Fitzgerald and published in the July 1992 issue of For The Defense, the official publication of the Defense Research Institute (DRI).