top of page

The Advantage Blog

  • Tsongas Litigation Consulting


Many trials are decided based on which version of the truth a jury accepts from competing witnesses. An obvious strategy that is taught to witnesses (or really any other speaker) is that they need to build and maintain credibility. A jury must trust and believe what a witness has to say if they are going to accept the version of the facts that the witness is providing.

In the drive to improve credibility, witnesses are taught many strategies, both verbal and non-verbal, for gaining the trust of a jury. Witnesses should spend significant time practicing these strategies because they are so important to the ultimate success of their testimony. This investment of effort continues during the actual deposition or trial testimony, when the speaker should make every effort look and sound credible.

But after all the hard work, it is remarkably easy to deplete the credibility that has been developed. One of the quickest ways a witness can lose credibility with a jury is to guess about the answer to a question, and then have it proven that they guessed wrong. All the hard work a witness has invested can be lost in just one impulsive speculation. After all, if a witness is found to be guessing on one question, who is to say he or she was not guessing on many of their other answers?

Because of the damage that can be done by one wrong guess, it is important witnesses be advised that “I don’t know” or “I don’t remember” is a perfectly acceptable answer. It is not worth it to guess and risk potentially getting an answer wrong. However, many witnesses are apprehensive about saying “I don’t know,” feeling that it makes them look ignorant or evasive. There is some validity to such a fear, as jurors are quickly turned off by a witness who repeatedly answers questions, especially questions that seem straightforward, by saying “I don’t know.”

Fortunately, there are ways to answer a question with more substance than a simple “I don’t know” without guessing. There are three tools I like to suggest to witnesses.

Usual Practice

The first is to provide their “usual practice” in a given situation. For example, if someone asked me, “Glenn, what did you have for breakfast a month ago today?” Like most people, I can barely remember what I ate yesterday, let alone a month ago. But instead of saying, “ I don’t remember,” I can say, “I don’t remember that specific day, but I usually have cereal for breakfast.” This provides a little more information to jurors without committing to something that is not clearly remembered. I often give this advice to medical practitioners on how to answer, “What did you do when you met this patient?” They are taught to answer, “I don’t remember my first meeting with Mr. Smith, but typically when I first meet a patient I will…”

Case Documents

The second tool I suggest to witnesses is to use the case documents to help them answer the question. Some attorneys like to hold back the documents and goad the witness into guessing about the answer to a question. Witnesses should request to see the document before answering and refuse to speculate. One way to word it is, “I can give my best answer if I could take a look at the document.” This signals to the jury (or judge) that the witness has requested to see the document and any answer without it would be speculation. An attorney that refuses to give the document will look like they are not interested in the witness’s best answer, which hurts their credibility.

Context for Not Knowing

Finally, giving an answer that begins, “I don’t know (or remember) because…” is an effective way to let the jury know that there is a reason the witness does not know the answer. This is an especially helpful tool for witnesses to help them “stay in their lane.” Witnesses should not veer outside of their lane of knowledge or expertise to guess about what someone else did or why they did it. “I don’t know because Ms. Smith is the person in our organization who handles these issues,” is the type of answer witnesses should use to handle questions about topics outside their own experience. This also applies to questions like, “What was Mr. Jones thinking when he sent this email?” The witness should not guess about Mr. Jones’ thoughts or motives.

Maintaining credibility is a vital strategy for witnesses in deposition or trial. It is critical not to guess about things the witness does not know or does not remember. At the same time, avoiding a string of “I don’t knows” or “I don’t remembers” is also important to keeping trustworthiness. By using these tools to give more satisfying answers, witnesses can avoid getting caught guessing wrong while still showing jurors they are trying to help them learn about the issues in the case.

Recent Posts

See All


Dr. Anthony Fauci has it all. From a standpoint of persuasion and credibility, he is the full package, whose presence at a podium jumps beyond his modest 5’ 8” frame. In a recent poll conducted by the


bottom of page