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Winning Witness Preparation: How to Get Witnesses Ready to Testify at Trial

by Alexander T. MacDonald

 

Trials are like football games: they’re won on the practice field. And no aspect of trial practice demands more preparation than witness examinations. Trials are about facts, and you get your facts through witnesses. Fact witnesses are, of course, invariably non-professionals. They don’t testify for a living. So they need your help to get ready for game day. That can be an intimidating prospect, especially if you’re new to the trial process yourself. But don’t worry: follow these three steps, and you’ll have even the greenest rookie witness ready for prime time.

 

(1) Prepare your questions. Before you do anything else, figure out what you want from the witness. Ask yourself, Where does the witness fit into my case? What do I need the witness to establish? Is this witness the best person to do that? Is the witness vulnerable to cross-examination? Does the witness have any credibility problems? The answers to these questions will focus your mind and help you draft a good set of questions.

 

Now, most trial-practice authorities admonish young attorneys not to write out their questions. You don’t want to sound like you’re reading from a script. Trials aren’t stage productions, after all—they’re trials. Plus, if you’re reading your questions from a list, you’re not listening to the witness; you’re too focused on your next question.

 

That’s good advice—to a point. Once you get to trial, you shouldn’t (and won’t) read from your list. But while you’re still preparing, still figuring out your case, you absolutely should write out your questions. Doing that will help you see the witness’s testimony as a whole. It will help you practice asking questions in the proper form. And it will reveal any glaring holes in the testimony.

 

So write the questions out. And after you’ve done that, share them with the witness. Most witnesses will feel more comfortable once they’ve read the questions. Plus, when they know what you’re going to ask, they can do any necessary research before you meet. That will save both of you time during your live prep sessions.

 

(2) Prepare your witness. And make no mistake, using your time efficiently is crucial. Even scheduling your prep sessions can be a challenge. That’s why you should reach out to the witness as early as possible. Some witnesses have tight schedules, and you may need multiple sessions. Also, some witnesses chafe at going through multiple sessions, especially if those sessions are thrown on the calendar at the last minute. So set expectations early.

 

How you begin each session will depend on the witness’s experience. A novice witness will need much more instruction about the basics. Start by explaining the attorney−client privilege (if it applies). Go over basic courtroom procedures, too. And while it may seem too obvious to mention, spell out the sartorial expectations. At trial, the witness will be the star of the show, and the last thing you want is your star showing up to perform in an old t-shirt and jeans. The key word is professional. The witness should dress just as well as you do—or better.

 

You should also help the witness spot any distracting tics. Most people have them, but few people are aware of them. For example, a witness might fidget, bite her nails, or play with her wedding ring. Worse, the witness might lard her answers with phrases like “okay,” “you know what I mean,” or “to tell the truth.” That’s nothing but verbal stuffing. And while stuffing may be fine in ordinary conversation, jurors and judges will quickly tire of them at trial. The same goes for finger biting and its ilk—bad habits like that do nothing but distract the jury.

 

The witness won’t fix her tics alone. Bad habits are an unconscious reaction to stress; the witness probably won’t even realize what she’s doing. So it’s your job to both spot the maladies and prescribe the remedies. One of the most effective medicines is videotape: record your practice sessions, then play them back for the witness. You’ll be astonished by how quickly she’s cured.

 

You should also work on the witness’s voice. Nervous witnesses talk too softly and too quickly. Remind the witness to speak up and slow down. If the witness forgets, try standing near the far corner of the jury box. Then, when the witness answers your questions, she’ll naturally speak loudly enough for you—and the jury—to hear.

 

Of course, not all witnesses will be shy. Some will be chomping at the bit to tell their side of the story, which can actually be more difficult to deal with. The problem is that the witness, eager to help, tries to win the case with every answer. But instead of bolstering your case, the witness just ruins her own credibility. Overeager witnesses come off as biased and partial; and obviously biased witnesses are essentially useless to your case. So remind the witness that she’s not there to argue the case—that’s your job.

 

(3) Prepare yourself. A direct examination is like a tango: it takes two. You and the witness are dance partners. If you’re not moving to the same music, you’re likely to step on each other’s toes. You have to be in harmony with the witness. Witness prep, then, isn’t just about preparing the witness; it’s also about preparing yourself.

 

That means you need to know the facts of the case just as well as—or better than—the witness. You can’t just put the witness on the stand and expect her to tell a complete story. The witness will forget to mention key facts; learn to expect that. It’s no reason to panic. When she forgets, you’ll just do what lawyers do: you’ll reel the witness back and guide her to the place you need her to go.

 

But to do that, you’ll need to remember the key points yourself. Any easy way to make sure you haven’t passed anything over is to prepare a checklist for each witness. Don’t consult it throughout your examination; you’ll look like you’re just going through the motions. But do check it when you think you’re coming to the end. Make sure you haven’t skipped over anything important. If you missed something essential, you need to know that before the witness steps off the stand—not when opposing counsel moves for a directed verdict.

 

You also need to prepare for objections. T try to view your own questions with a skeptical, even hostile, eye. Think about how you would attack your questions. Find your trouble areas, then avoid them. Even if an objection lacks merit, it can still derail your momentum. So deny your opponent the opportunity to make one.

 

Now, you won’t be able to steer clear of every objection. So figure out where you can’t avoid it and have a rebuttal ready. Keep caselaw and rule citations handy. Opposing counsel, if she’s done her homework, will almost certainly be ready with authorities. If you don’t have some of your own, you’ll look unprepared. And nobody likes to look like a neophyte.

 

But that won’t happen to you because you’ll be prepared. You’ll have gone through the steps: You’ll have prepared your questions, you’ll have prepared your witness, and you’ll have prepared yourself. So when the lights come on, you’ll be ready for prime time.

 

Alexander MacDonald is the editor in chief of the Practice Tips Series. He can be reached at amac2644@gmail.com.