“Tell me your version of the truth.”
“Here’s my version of the truth.”
I’ve heard judges, attorneys, parties, and witnesses say things like this throughout my legal career. In fact, it’s become pretty common.
Take a moment and think about how absurd these statements are. There’s no “my truth.” There’s no “your truth.” There’s just the truth.
It’s always a good idea to scrupulously tell the truth, but when it comes to deposition or courtroom testimony that’s certainly the case. That’s why witnesses are required to take an oath before testifying.
The 9th Commandment and the law’s testimonial oath
When witnesses are sworn in in Texas, they’re asked to swear or affirm that they’ll tell the truth, the whole truth, and nothing but the truth. This oath originates with the Old Testament’s Ten Commandments. Exodus 20:16 shares the 9th commandment, which says, “Thou shalt not bear false witness against thy neighbour.”
The commandment and oath to not bear false witness is higher than merely promising to tell the truth. Any parent will immediately be able to tell the difference! You can tell some of the truth without telling the whole truth. You can tell some of the truth and a lot of innuendo without telling nothing but the truth. If you tell the truth, the whole truth, and nothing but the truth, then that covers it all.
Practical reasons to tell the truth in testimony
Some people foolishly give in to the temptation to try and look smart and even twist the truth a bit to make themselves look good.
The intense, adversarial nature of litigation tends to uncover lies and half-truths.
In addition, while there’s only one truth, different witnesses may have different vantage points from which they observed the truth. Think about a car wreck that occurs in a busy intersection. The one truth is there was a wreck. Witnesses from the four corners of the intersection had different vantage points from which they saw the wreck. This is another reason why it’s important, as a party or witness, to stick with what you know first-hand.
First-hand or personal knowledge means that you saw or heard an event or information yourself. This includes out-of-court statements by opposing parties that you personally heard. All of this is admissible testimony. I advise my clients and witnesses to testify only about what they know, saw, and heard first-hand.
Contrast that to hearsay, which is an out-of-court statement made by a non-party to the lawsuit, offered for the truth of the matter asserted. Hearsay is inadmissible in court because second and third-hand information is inherently unreliable. If you’ve ever played the “telephone game,” you know what I mean.
When I have clients or witnesses who’ve been given hearsay information, I urge them to avoid testifying about it. Leave these subjects to witnesses who saw or heard the information directly. They have personal knowledge and the best vantage point for the truth.
Finally—and this is a big one—don’t be afraid to say, “I don’t know” or “I don’t remember.” As grown-ups, we’re sometimes ashamed to admit such things. In normal casual or work conversations we might answer questions with our “best guess.”
I counsel my clients and witnesses to stay away from “best guesses,” and instead stick with testimony where you have personal knowledge and recollection. If you don’t do this, someone may come along with a better memory or conclusive documentation that shows your “best guess” was wrong, which may make you look dishonest or manipulative.
On this same line, I encourage my clients and witnesses to give general answers to questions about dates and times. I’ve never met anyone who can remember exact dates and times of conversations and events that took place a year or more ago. I think it’s more reliable to think about events in the order they occurred, giving general answers about dates and times, unless there’s an anchoring event, like a birthday or holiday, that occurred at the same time that triggers your memory.
Judges and jurors like, appreciate, and find credible parties and witnesses who give straight-forward answers to questions, without wobbling, couching, or guessing. In short, to succeed as a party or witness giving testimony, tell the truth, the whole truth, and nothing but the truth.
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Robert Painter is a medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits against hospitals, physicians, surgeons, anesthesiologists, and other healthcare providers. A member of the board of directors of the Houston Bar Association, he was honored, in 2018, by H Texas as one of Houston’s top lawyers. In May 2018, the Better Business Bureau recognized Painter Law Firm PLLC with its Award of Distinction.