What would you do if you were asked to give sworn testimony? Or a sworn statement? What the heck does sworn testimony mean, anyway?  Sworn means given under oath. A sworn testimony or statement is your view of the facts, either verbally or in writing, and a promise that you are telling the truth.

Nothing But the Truth

If you give your version of the facts under oath, and it turns out you deliberately lied, you could be punished.  The penalties for lying under oath range from financial penalties to jail time. In a criminal case, lying under oath is called perjury.

You could be asked to give a statement or sworn testimony anytime you are involved in an event, have been near an event, or know something about an event.  A car accident is an example of an event that could result in different kinds of sworn testimony.

If you are driving or a passenger in one of the crash vehicles, you are involved in the event, and will be asked to give a statement or sworn testimony about what happened.

If you were walking on the sidewalk and saw the whole thing happen, you were near the event and could be asked to give a statement, or sworn testimony to tell what you saw and heard.

If one of the drivers in the crash was drunk, you may be asked to give a statement or sworn testimony about what you know if you partied with the driver at the neighborhood bar in the hours before the event.

Your Own Attorney

If you are named in a lawsuit because of an auto accident, in most cases your insurance company has a “duty to defend” you, even if the accident was entirely your fault! That means they will hire an attorney to represent you in the lawsuit. Don

Don’t expect your insurance company to pay for an attorney if you are the one who wants to file a lawsuit, or if you have not been sued by someone who is making an insurance claim against you.

If you want to hire an attorney on your own, it will be at your own expense. Some attorneys will take your case on a “contingency” basis, meaning they don’t get paid unless you win the lawsuit and get some money, like insurance proceeds, then they will get a portion of the amount you are awarded.

If you are facing criminal charges and can’t afford an attorney, the court may appoint an attorney to represent you, often called a “public defender”.

Recorded Statement

Sticking with our example of the car wreck, if you are directly involved in the event, at first you will likely be asked to give a statement to the police officer at the scene. This is not sworn, but it will be part of the official accident investigation report.

Later, you will be contacted by the insurance companies that issues auto policies covering the vehicles involved. Generally, the insurance adjuster will give you a call or meet with you and ask you to give a statement, to tell the adjuster your version of what happened. If they intend to record you conversation, and they usually do, they should tell you or ask your permission to record the conversation. They will often ask you again at the end, to get it on the recording, if you understood that your discussion and statement were being recorded.

If you are already represented by an attorney, you should not give information to anyone who asks for it, like an insurance adjuster, even if it is your insurance company.  If you are the insured person, you have an obligation to cooperate with your insurance company. That does not mean you can’t coordinate their request with your attorney.

Once you are represented by counsel, let your attorney decide a when and under what circumstances you will provide your statement. Your attorney may or may not decide to be with you when you give your initial statement to the insurance adjuster.

If you have already given a statement and later hired an attorney, don’t be surprised if the attorney immediately demand copies of any statements you already gave, even if you already told your lawyer what you think you said.

Affidavit

An affidavit is a written statement given under oath, of some fact or set of facts explained to the best of your knowledge. Affidavits are usually notarized.

Examination Under Oath

There are a couple different ways that most people may be called upon to give sworn testimony. A tad less formal scenario, often used by insurance companies, is to hire an attorney during the investigation of a claim to perform an “examination under oath” or “EUO”. An examination under oath is most often used to gather information before any litigation has been filed.

An EUO is part of an insurance company investigation of what happened. It is a tool used to help the insurance company determine if the event giving rise to the insurance claim will be a covered event under the insurance policy. There will usually be someone there who is qualified to take down everything you say and take your oath that everything you will say is true. The attorney will ask you a series of questions about your identity, and the facts of the case. They may ask about your finances or other information.

You may agree to participate in the EUO with or without an attorney. You are not required to bring an attorney, but you can if you want to. If you are already represented by an attorney, never agree to any kind of statement without discussing it with your attorney first.

Deposition

The more formal kind of sworn testimony is a deposition. There will always be a court reporter hired to take down what everyone says on the record, and there may be a videographer if your deposition will be recorded on video.

You will be notified in writing of the scheduled deposition and may even get a subpoena. The notice will tell you if it will be a video deposition.

During the deposition you may be questioned by more than one attorney. Your attorney may also ask you questions, if he or she feels that there are points to your side of the story that are important to have on the record or to counter a line of questioning that may have been asked by the other side to bring out statements that can be used to support their side of the story.

Do’s and Don’ts of Sworn Testimony

A deposition is not the time and place to tell your side of the story. That is important to remember!  On television it is always a dramatic scene where the person in the hot seat gets to tell their side of the story and exactly what they think of the other parties in the case. The person testifying may even drop bombs of information, knowledge or facts that will dramatically change the direction of the litigation – emphasis on dramatically.

As much as you may be bursting to tell your side of the story, don’t do it. You will have your day in court, literally, unless the case settles before trial. The more information you volunteer in the deposition, the more the other side will pounce on a word or phrase and drill you with questions. They will leave no stone unturned.

Do you have an attorney? Be sure to make time to meet with your attorney before the deposition.

Be prepared to work with your attorney to go over questions that you will likely be asked by the other side. Your attorney has your best interest in mind. He or she will give you some general advice on giving testimony, but above all they will counsel you to tell the truth.

Tips on Testimony

Telling the truth – answering truthfully – is not the same as blowing your stack or spilling your guts. In a deposition you do not, repeat, and do not want to offer additional information in response to a question.

Short and Sweet

I have a favorite drill for helping folks prepare for depositions. I learned this drill from one of the most brilliant and successful attorneys I know. It goes something like this:

Imaging you are the deponent. The attorney who is questioning you holds up a spoon, and asks “do you know what this is?” You immediately respond, “Sure I do! It’s a spoon!”

Wrong answer!

The correct answer, if you know what that is:    “Yes.”

Yes. PERIOD. If the attorney wants you to name the object, they will have to ask that question by asking you to name that object. Get it?

I love that exercise because it is a light bulb moment for most of us.

Facts – Not Opinions

The other thing about deposition testimony is that you are there to provide facts, not opinions. You are not qualified to give expert opinions. You can relate what you saw, or heard or did. You can state where you were and what interaction you may have had with others involved in the event.

Remember, you are not qualified to give opinions as to things like “How drunk was she?” or “Do you think that bridge could hold ten cars?” Anytime they are asking what your impression was, be careful to take the time to give some thought to the question before you answer.

No Guesswork

That’s the other thing – you do not have to answer a question if you truly don’t know the answer. It is perfectly acceptable to say you don’t know. If you are not sure, don’t guess. It is natural to try to be helpful and answer any questions asked to you directly. The attorney asking you questions is counting on that. You do not have to come up with an answer to every question! And you should not answer any question quickly. You don’t score points for a fast response.

You do not have to answer a question if you truly don’t know the answer. It is perfectly acceptable to say you don’t know.

In fact, it is better that you don’t answer every question, or any question, quickly. Always pause to think about the question and form your response. Ask to have the question repeated, or say so if you don’t understand the question. Protect yourself from saying something you don’t mean! Give your attorney a chance to object if the question is not something you should be answering.

Do you have questions about statements and testimony? Have you been through a deposition? Please share your comments!