May 2008

Novel Approaches to Witness Preparation

By Dennis P. Rawlinson

Traditional Method

A few years into practice, based on experience and study, most of us develop a checklist that we use as a basis to prepare witnesses for trial and deposition testimony. It is not unusual for the checklist to number 10 to 20 items or more.

We then invite our witness to a testimony preparation session. We spend 30 to 45 minutes lecturing the witness on how to be a good witness and cover the 10 to 20 points (the witness no doubt feels like a worker caught behind a dump truck when the truck bed is lifted vertically, the gate opened, and the contents dumped). At the end of the session we ask the witness if he or she has understood or has any questions. We get either a nod of the head (to avoid the embarrassment of admitting that the witness is not on the same intellectual plane as the lawyer) or perhaps a question or two.

The witness then proceeds to the examination not only with the trepidation of facing an unusual or unknown experience but with the additional baggage of trying to remember 10 to 20 foreign and unnatural rules. We are then surprised when the testimony doesn’t go the way we had hoped.

Novel Approaches

A number of psychologists have criticized the traditional form of witness preparation. The criticism is usually based on a number of factors, including:

• Witnesses generally have limited attention and retention capabilities
• Dialogue and participation heightens the possibility of retention
• Witness preparation should be confidence-building, not fear-provoking

Set forth below are a number of suggestions I collected from a number of sources, including my participation as a faculty member at National Institute of Trial Advocacy Deposition Preparation seminars.

Question, Don’t Lecture

Don’t start witness preparation sessions by advising and coaching. Instead, find out what is on the witness’s mind. What concerns does the witness have? Answer and address those concerns so that they do not block the witness’s ability to pay attention to the rest of the session. You may even find that such dialogue will cover some of the points you had hoped to cover.

Practice Before Lecturing

Practice a direct examination with the witness or even a difficult, but not brutal, cross-examination. You will discover the strengths and weaknesses of the witness. You may discover that a number of the points to be covered don’t need to be discussed because the witness already understands and practices those points. The same practice examination will raise weaknesses that can be discussed. These weaknesses will no doubt involve other points you had planned to cover and will allow you to:

• Prioritize those points
• Take them one at a time
• Create pertinence and context for the points
• Promote dialogue with the witness

As the practice session continues, interrupted by dialogue, discussion, and suggestions, consider the following:

• Initial comments should be mostly positive to build confidence. Initially instilling confidence in the witness will make the coaching session a positive experience. The witness will gain confidence and will more readily accept suggestions for improvement later in the session.
• Give good with bad. With every negative suggestion, mention something good. If a witness believes he or she is doing well, he or she is more likely to improve, concentrate, and enjoy the preparation experience. For instance, you might say “Good, calm, deliberate answer.” Then you may say, “But remember to answer briefly.”
• Comment positively about the witness’s appearance. Everyone cares about his or her appearance. Make the witness feel good about how he or she looks. For example, “Don’t be afraid to stop and think before your answer. With your last answer, you looked thoughtful and credible.”
• Relative to roles, be sure your witness knows how his or her particular testimony is intended to fit into your overall case. This may prevent voluntary digressions and assist the witness in using his or her own wits in response to surprise questions.
• Alert the witness to vulnerabilities. Discuss with the witness what you see as probable grounds for attack by the adverse party, and practice and discuss the handling of those attacks.
• Conduct a practice cross-examination. Conduct (or have someone in your office conduct) a more ruthless cross-examination than the one you anticipate from opposing counsel, and then discuss and cure problems and weaknesses.
• Help the witness sound good. Assist the witness, if necessary, with testimony volume, speed, breathing, articulation, and fading of sentences. Help the witness be positive, clear, and engaging with his or her choice of words.
• Encourage the witness to have proper eye contact with the proper party (in the case of a jury, looking comfortably from juror to juror, then the counsel, and then the jurors again). Ensure that the witness avoids talking to the floor, ceiling, and shirt fronts. The witness should also avoid looking to you for help and approval (and thereby losing credibility).
• Consider video sessions. For witnesses who need work, consider preparing a videotape of their mock direct and cross-examinations and then viewing it with the witness. Often, when a witness sees his or her nagging idiosyncrasies and bad habits, it will enable the witness to address and correct them.

Consider conducting a debriefing after the testimony. Ask the witness to identify the portions of the preparation that were helpful and those that were not. Witness preparation is one of the processes on which we have the opportunity to obtain regular feedback. Because of this feedback, there is no excuse for not improving.

You may not find that by trying some of these testimony preparation approaches, you start winning cases that you otherwise would have lost. On the other hand, I believe you will find that you will improve the chances of communicating effectively with your witnesses and improve their abilities as witnesses. In a close case, that just might make the difference.

Copyright © 2008, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.