We often assist clients with reviewing subpoenas, whether for testimony, to produce documents, or both. In this litigious world that we live in, it is possible that you and your staff may become involved in civil litigation or administrative processes, which may require you to testify as a witness at a deposition, hearing, or trial. This article focuses on tips to use to prepare yourself and your staff for testimony as a lay (fact) witness, in such instances.

As a preliminary note, for school district clients, it is not uncommon for staff members to be served with subpoenas to testify in family, civil or criminal cases. In those situations, a key issue for school districts is ensuring compliance with confidential pupil record laws. Under the Family Educational Rights and Privacy Act (FERPA), the term “disclosure” is defined broadly and includes an oral communication of personally identifiable information contained in education records. Generally, a school district may disclose personally identifiable information contained in education records under the following circumstances: (1) written consent from a parent, guardian or adult pupil, 2) a court order, or 3) pursuant to statute. Once a school district confirms compliance with confidential pupil record laws, the following tips may be helpful to review in preparing to provide testimony.

Each situation will vary depending upon the specific facts and circumstances involved, but the following tips can be used as a starting point for preparation for such situations:

  • Listen carefully to each question. If you do not understand the question, express this to the attorney asking the question; otherwise, the attorney asking the question may assume that you understand the question being asked.
  • Make it a practice to take a deep breath before answering a question. This will give you time to think through your answer and stay calm. It will also give your attorney time to object to the question, if necessary.
  • If there is a problem with a question, such as if it consists of two questions in one or is vague as to time or events, it is advisable to request clarification. In response, the attorney asking the question will likely rephrase the question.
  • If a question includes facts that are inconsistent with your recollection of the events, you may need to qualify your answer. At times, the attorney asking the question may include their clients’ version of the facts and events within the question itself, which may be contrary to your recollection of the events in question.
  • It is best to avoid guessing or speculating when answering a question if you do not know or remember the answer. The attorney may ask you follow-up questions, in an effort to narrow the facts on the particular issue at hand.
  • If a question asks you about something that is included in a document, it may be appropriate to respond that you cannot recall the answer without referencing the document. The attorney asking the question may then mark the document being referred to as an exhibit and provide the document to you to review prior to answering the question.
  • If you are asked about a document that is marked as an exhibit, it is best to take the time you need to refresh your recollection of what is contained in the document by reviewing the document prior to answering the question.
  • Generally, it is advisable to limit your answer to the specific question being asked of you, unless it is necessary to qualify your answer.
  • With a subpoena to testify, as opposed to a subpoena duces tecum (i.e. to produce documents), it is best to avoid bringing documents with you when you provide testimony.
  • Generally, a lay (fact) witness cannot be compelled to provide expert opinion testimony, unless compelling circumstances exist, such as when there are no other individuals in the particular field who are qualified to answer the question.
  • It is best to be truthful in all responses.
  • You may be asked what documents you reviewed in preparation for your testimony and to refresh your memory. Be mindful that the documents may need to be provided to the opposing party.

Upon receipt of a subpoena, it is advisable to review applicable policies and/or consult with legal counsel prior to providing testimony or documentation. For instance, many school district clients maintain policies that if a staff member receives a subpoena, he or she must immediately notify the building principal or Superintendent. Such policies should be regularly reviewed and reinforced with staff members to ensure compliance.