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When you represent yourself in court, it’s called appearing Pro Se, which is Latin for “on one’s own behalf.”
Unfortunately, I’ve watched countless pro se litigants ruin winnable cases because they didn’t know how to testify, object, or present evidence. So, I’m going to teach you how testimony is different when you represent yourself, 3 of the most common objections, and how to get most evidence admitted.
Obviously, I can’t squeeze 3 years of law school and my 12 years of trial experience into this one article, but these few tips will either help you when you appear pro se in Court OR convince you that hiring an attorney is in your best interest.
Testifying Pro Se and examining witnesses
Evidence in our adversarial legal system is routinely provided through live-witness testimony. This means that someone will take the witness stand and answer questions. When you’re representing yourself pro se, the responsibility for asking questions of the witnesses (including yourself) will be all on you.
How to testify pro se
When you’re representing yourself, your testimony is EXTREMELY important, but is often the most overlooked portion of pro se trial prep.
I’m going to warn you, it is going to feel incredibly awkward, but this is normal. I’d rather you prepare to feel awkward rather than you be surprised when you’re hit with those feelings on the stand.
When you testify pro se, you’re allowed to testify in the narrative. That means you’ll be giving testimony that is not in direct response to questions. This is much more difficult than simply answering questions by an attorney because two heads are better than one. If you misspeak, lose your place, or forget a necessary fact, you don’t have someone else keeping you on track or helping you to remember.
When you’re preparing your testimony, take the time to write out questions for yourself, along with your answers. Then, you roll your questions into your answers. Instead of “What is your name? John.” it becomes “My name is John.” It might seem easier to just skip this step, but you first need to go through the exercise of writing out the questions because it will keep you focused on your evidence.
When you’re testifying pro se, your natural reaction is to just “tell your story.” Well, that’s not how trial works. Rather than just telling your story, you need to focus on giving the Judge or Jury specific evidence that proves all of the elements for your case.
Alternatively, if you’re the Defendant in the case, then you need to know the elements of the Plaintiff’s case so you can provide testimony that disproves those elements.
When you’re being cross-examined by the other side, remember that you can still make objections to their questions just like an attorney representing you could do while you’re testifying. More on objections later.
How to examine friendly witnesses pro se
When the witness is friendly to you (meaning that they are there to offer evidence that is beneficial to your case) then your questions can’t be “leading” but must be open ended. If the question calls for a yes/no answer, then it is probably a leading question. Open-ended questions usually begin with Who, What, When, Where, Why, or How.
Keep your questions simple so that the answers are only about a sentence or two long. Talk to your witnesses in advance to let them know the questions that you’ll be asking and to make sure that their answers are what you’re expecting them to testify to.
How to examine hostile witnesses pro se
When the witness is hostile to you (meaning that they are there to offer evidence that is beneficial to the other side’s case) only then are you allowed to ask leading questions. This is known as Cross-Examination.
Your goal when asking leading questions is to get the witness to say the word “Yes” as many times as possible. Ask questions that begin with, “Isn’t it true that…” or “You’d agree with me that…”
The best cross-examination questions only ask one fact per question. Remember, you want as many “yes” answers as possible, which means that it is better to ask more questions rather than fewer questions.
When the other side is asking questions of their friendly witnesses, they aren’t allowed to ask those leading questions.
Yes, even when appearing pro se you have the right to make objections. If you hear them asking their own witnesses leading questions, make sure you object. That’s your bonus objection, which brings us to the 3 most important objections you need to know.
3 objections every pro se needs to know
The tough reality is that every single Rule of Evidence is a potential objection at trial. Since it is impossible for me to teach you all of the Rule of Evidence in one article, I’m going to discuss the 3 most important objections that you’ll need to know before you appear pro se.
Before we discuss those objections, here’s how you make them. When you realize the need to object, you stand up and say “Objection, Hearsay” or “Objection, Speculation,” or whatever other objection that you think is appropriate. Your objections are always addressed to the Judge and not the other party or attorney.
The Judge may ask the other side to respond, but you need to ensure that the Judge actually rules on the objection so you have a clear record.
If the Judge says “Sustained,” then the Judge agrees with the objection and the evidence is excluded. If the Judge says “Overruled,” then the Judge disagrees with the objection and the evidence comes in.
Hearsay Objections
Hearsay is an out-of-court statement offered in court to prove the truth of the matter asserted in that statement.
In simpler terms, it is an assertion made by someone who is not testifying in court, and it is being presented in court to prove that the statement is true. For example, if the witness testifies that the police officer at the scene of the wreck told him that the light was green, and the statement is being offered to prove that the light was in fact green, then that is hearsay.
Hearsay is generally considered unreliable evidence because it is not subject to cross-examination, and the person making the out of court statement is not under oath or subject to the scrutiny of the court.
You can make this objection both when the question specifically requests the witness to give hearsay evidence, (What did John tell you?) and when the witness starts offering hearsay evidence on their own even though the question didn’t call for it.
You should familiarize yourself with the exceptions to the hearsay rule. Hearsay evidence may be admissible if it falls within one of the recognized exceptions. Common exceptions include statements made by an opposing party to the case, statements against interest, present sense impressions, excited utterances, and statements made for medical diagnosis or treatment.
Something that most people who appear pro se don’t realize is that documents can also be objectionable as hearsay. If a bystander at the wreck wrote in their witness statement that they saw the light was green, and that written statement is being offered to prove that the light was green, then that would be hearsay.
When considering your own evidence and testimony, you should avoid trying to offer hearsay evidence, unless an exception applies, in order to avoid the other side objecting during your presentation.
Nonresponsive Objections
The nonresponsive objection is a type of objection raised during a trial when a witness fails to directly answer the question posed to them or provides additional information beyond what the question requested.
The purpose of this objection is to bring the focus back to the specific question asked and to prevent the witness or opposing party from providing extraneous or unhelpful information. Making this objection draws the Court’s focus to the fact that the witness avoided answering the question because you’re going to have to re-ask the question to get a direct answer.
This is an important objection because if you didn’t get a direct answer, then you need all of the extraneous information to be kept out of evidence. Then, you need to re-ask the question in order to get a straight answer.
Not Within Personal Knowledge/Speculation Objections
These are technically two different objections, but they’re so closely related that we can cover them both here.
These objections aim to prevent witnesses from offering opinions, guesses, or speculations about facts or events that they do not have direct knowledge or expertise about.
You object both when the question requests the witness to speculate about events or outcomes, and when the witness starts offering evidence that is beyond what they saw, heard, or experienced.
How to get evidence admitted
Here’s an acronym to help you remember how to get evidence admitted.
R.A.M.
If you want to get evidence admitted, you have to RAM it in. It sounds dumb, but hopefully it helps you remember.
R.A.M. stands for Relevant, Authentic, and Material.
Evidence is Relevant if it makes a fact of consequence more or less probable than it would be without the evidence.
Evidence that you use at trial must be Authentic. That means that you need to be able to show that the evidence is what you say it is. To authenticate evidence is to show that the evidence is genuine, not fabricated, or altered.
Evidence is Material if it is related to the issues that the judge or jury will have to decide.
That might sound really complicated, but it really isn’t.
Let’s discuss some examples. I’ll go in depth with Pictures, and then just cover the nuances when it comes to video recordings, audio recordings, and text messages.
Pictures
To prove relevance, you need to give testimony about the event that is depicted in the picture. If it’s a picture of an injury, then you should first give some testimony about the injury and the fact that you took a picture of it. That way the picture is relevant because is makes a fact of consequence (the injury) more or less probable than it would be without the evidence.
To prove authenticity, you need to give testimony that you were present when the picture was taken, that the picture accurately depicts the scene as it existed, and that your exhibit is a true and accurate copy of the original without any edits, deletions, or alterations.
To prove materiality, you need to give testimony to show that the picture of the injury is related to the issues that the judge or jury will need to decide. For example, explain that the injury in the picture is the same injury that you’re seeking compensation for in the lawsuit.
Audio Recordings
To get an audio recording admitted, you need to follow the RAM procedures, but with some extra testimony for authenticity. With audio recordings, you also need to give testimony that you were competent to operate the recording device, that you’ve reviewed the recording, that the recording accurately recorded the events, and that you can identify the voices in the recording.
Video Recordings
To get a video recording admitted, you need to follow the RAM procedures, but for authenticity you need to give all of the same testimony as you would for both pictures and for audio recordings.
Texts/Social Media Messages
To get text messages admitted, you need to follow the RAM procedures like you would for pictures, but for authenticity you also need to establish authorship. Because text messages and social media messages are so prevalent, we’ve covered them in an entirely separate video that we’ll link in the description.
Extra Do’s & Don’ts
Now that we’ve covered Testimony, Objections, and Exhibits, here are some rapid-fire bonus tips before your pro se court appearance.
- Always stand up when addressing the Court.
- Don’t refer to the opposing attorney (they are just a representative and not a party) but instead refer to the Plaintiff or Defendant.
- Ask for permission to approach the bench or witness before leaving your seat.
- Don’t get upset or show emotion at the Judge’s ruling on an objection. Accept it and move on.
- Print, label, and number all of your exhibits before the hearing.
- Don’t try to hand the Judge an exhibit that you haven’t shown to opposing counsel
- Always print an Exhibit List of all of your exhibits before the hearing so the Court Reporter will know which exhibits you’re referring to, and it will also help the Judge to keep track.
–Authored by Matthew L. Harris, Esq.,
Matthew Harris Law, PLLC – Civil Litigation Division
1101 Broadway, Lubbock, Texas, 79401-3303
Tel: (806) 702-4852 | Fax: (800) 985-9479