Jury Duty, Trials

Taking The Stand: I Testify In Front Of A 12-Person Jury

While it was interesting to engage in a brief role reversal by taking the stand, the experience was more uncomfortable than exciting.

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One of the good things about being attorneys is that we get to ask the questions. We can typically avoid any examinations regarding our own conduct with the trifecta of the work-product doctrine, attorney client privilege, and the rule of professional conduct that an attorney cannot both act as an attorney and serve as a witness in the same case. We get to do the finger pointing, thank you very much.

So whenever I have taken the stand in the past, it’s been in the context of a mock trial. My biggest concern has been whether I would be able to remember the pre-fabricated answers to the questions with a brain already stuffed full of law-school textbook reading and undernourished by a diet of Top Ramen soup.

That all changed last month when I was asked to authenticate a document in a trial on a counterclaim against one of my clients. I was not involved in that trial, as my client’s claims had already been resolved on summary judgment. The counter-plaintiff was claiming that he hadn’t signed a certified mail receipt for a letter sent to him by my law office, though the receipt bore his signature. My job was to simply explain that the mail receipt was sent out and received by my office, and was linked to the letter based on the tracking number.

There was a chance that a sworn declaration from me would suffice. I received notice from insurance-defense counsel that I might be testifying the night before it would be take place. I prepared late into the night by watching TV shows at my friend’s house. In the morning, I received a text from counsel letting me know that they needed me to take the stand. This came as a relief to me, since I had recently bought a sweet Calvin Klein work dress that was begging to make its courtroom debut, and I had worn it for the occasion.

Now I was in the awkward position of a trial witness waiting to testify: Spending the day on standby.

That morning, my paralegal and I went through our firm’s mailing process to ensure that I understood it. Eventually it became clear that my paralegal would be the best witness for authentication, but she understandably hadn’t been included on the witness disclosure list. We compiled all of the original mailing forms and receipts for the numerous letters we had sent out on the case, but of course could not find the original receipt for this particular letter. Based on their fickle whims, the Gods of Trial Preparation had compelled it.

After a couple of texts letting me know things were delayed, I was told to show up at a certain time that afternoon. I had to sit on the long bench outside the courtroom like so many witnesses before me, waiting for my invite to a party that I didn’t particularly want to attend.

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When I was called into the courtroom, I had to make the long walk past the 12-person jury. I felt like everyone’s eyes were on me, since… they were. I was self-conscious of every move I was making, as lawyers know that body language can speak louder than words during a trial. I was sworn in and took my seat, and was handed a thick evidence binder. It was hard to know where to look: Do I talk to the attorney who is questioning me, or do I talk to the jury who is supposed to be evaluating my testimony? I quickly authenticated the letter and the mailing receipt. I was worried about the jurors’ eyes glazing over with a discussion about mailing receipts, but to my surprise they were listening like they were going to get a prize at the end for paying such close attention.

My direct examination ended, and the counter-plaintiff’s counsel objected because there was no original receipt on file. (My lawyer friend later told me that her firm just retains copies of them, which might be a standard practice for a lot of firms.) The jury had to take leave, and there was a lot of discussion that I was not involved in. It was an odd experience to be excluded from arguing about the evidence, and sitting there uselessly as an observer.

After that, the judge allowed opposing counsel to cross-examine me on all issues involving the case, over the insurance counsel’s scope objection. It put me in what experienced lawyers would call a “not-awesome situation,” since my involvement in the case reached back to 2012 and I had not reviewed my file in ages. Suddenly the phrase “I don’t recall” was no longer something witnesses said during depositions, but instead was my new best friend. It was also annoying to be in the position of a witness for whom the opposing counsel was trying to set what I knew was a cross-examination trap. I was quite sure the point he was trying to make was intended to support a claim that had been dismissed on summary judgment. But I still didn’t want to help him score points, even if they didn’t count.

At that point, the lawyer who had called me as a witness clearly just wanted me off the stand, so there was no re-direct. However, I still did the thing that mock trial witnesses do of jamming non-responsive positive material into a cross-examination question. It was frustrating to have opposing counsel try to attack my credibility based on my memory of something that happened four years ago, especially when I can’t always remember what I had for dinner the night before.

It seemed at some point that the torture-session should be over, but then the jurors got to submit written questions to the judge to ask me. The typical question was: “I know you did Thing X, but why didn’t you also do Thing Y?” It was like being dragged down a hellish memory lane to discuss everything I could have done differently or better years ago and then literally being judged for it by a pack of strangers.

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When I was finally dismissed, I was quite certain that the experience had besmirched my new dress, which now I would have to destroy in a ritual burning. But I left the courtroom smiling, since that’s what you are supposed to do.

The Verdict: I thought witnesses had it pretty easy — show up, tell the truth, go home. But there were so many other considerations involved: Trying to avoid being argumentative, trying to be helpful, trying to be accurate despite a faded recollection. It made me appreciate the witnesses who were willing to testify in my past cases, who were paid nothing but like me had to wait in an echoing hallway for their turn to be raked over figurative hot coals.

Ultimately, the counter-plaintiff admitted that he did sign the receipt, and I tell myself that my testimony perhaps helped encourage that result. The insurance lawyer later told me that the jury thought I was “honest and refreshing,” a phrase that I am going to have printed on a T-shirt.

While it was interesting to engage in a brief role reversal by taking the stand, the experience was more uncomfortable than exciting. The next time I am involved in a cross-examination, I’ll be sure to be the one asking the questions.

Allison Peryea is a shareholder attorney at Leahy Fjelstad Peryea, a boutique law firm in downtown Seattle that primarily serves community association clients. Her practice focuses on covenant enforcement and dispute resolution. She is a longtime humor writer with a background in journalism and cat ownership. You can reach her by email at Allison.Peryea@leahyps.com.

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