Podcast: Raise Your Right Hand, Miss Lillian

Dan Small: A normal person walks into a room full of strangers. A person with an odd-looking machine is taking down every word. A stranger is waiting to ask difficult questions and pick apart the answers. And someone tells them to raise their right hand and swear under oath. As Dorothy exclaimed upon entering the bizarre land of Oz, "Oh, Toto, we're not in Kansas anymore," when someone is called as a witness in any kind of legal matter, it's usually a new and disturbing experience. Still, too few people and too few lawyers understand just how completely new and different it really is. This is not a conversation. It doesn't look like one or feel like one, so no one should expect it to be like one. Communicating effectively in a question and answer format is an extraordinarily unnatural and difficult process. A witness must learn a new and strange language, and a discipline that's very different from anything that we use in our normal lives.

I was fortunate enough to learn this lesson early in my legal career, just out of law school and still trying to find my way around the labyrinth halls of the Department of Justice in Washington. I was assigned to the team prosecuting Bert Lance, the former United States budget director and lifelong friend of then-President Jimmy Carter. It was an opportunity for a new lawyer to learn many lessons, this one from the testimony of President Carter's mother, Miss Lillian. The defense made a strategic error, one of very few in a well-tried case: They presented the judge with a list of something like 50 people they intended to call as character witnesses for Lance. Character testimony has largely faded from trial practice today, but the idea was fairly simple. Witnesses who know the defendant and his reputation in the community are called to testify, basically, "Bert's a good guy, he would not have done this terrible thing." Since it has questionable value, it can be severely restricted under federal law. The judge, with visions of weeks of this testimony, given how long the list was, used his authority to do just that. The defense could ask character witnesses only a handful of narrow, legalistic questions. The defense went forward and called a few of these witnesses, including Miss Lillian. Knowing that the questions would be mumbo jumbo to someone with no legal experience, preparation was essential and pretty easy. "Miss Lillian, the judge has limited us to these few crazy questions. I don't know what they mean. You don't know what they mean. Just talk about Bert. Tell us why you think he's such a good person and give us a few examples that make you believe in him." What could we, the prosecution, have done? Tried to interrupt the sainted elderly mother of the sitting president in her beloved home state? That would have been an even better show for the defense than the testimony itself. No, we would have sat there and tried to act as if we didn't care, while she talked on in her own words. But whether it was lack of time or opportunity or whatever the reason, Miss Lillian apparently had not been prepared. She came into the courtroom looking frail, bewildered and out of place, and it never got much better. She was clearly put off by the legalistic questions, gave short, unclear answers, and it was over. One of the reporters in the room timed it. This extraordinary witness was on the witness stand for only two and a half minutes. As she left the courtroom, she looked over at Lance and said, "I wish it could have been longer."

I assume that if you sat on the front porch with Miss Lillian over a glass of iced tea and asked her to tell you about Bert Lance, it would have been longer. She would have had lots to say, high praise, heartwarming stories and much more. Instead, the questions were asked in a strange environment with an artificial formality and an unnatural language. Without adequate preparation this ideal witness was lost. It was not a question of substance — she presumably had plenty to say. Rather, it was a problem of process — she had not been prepared to communicate in this strange new world.

In every walk of life, at every level of education, profession or experience, we are all Miss Lillian. We know what we know or we think we do, but if we can't communicate it effectively, we're lost. Fortunately, it's possible for anyone to learn to communicate in this question and answer language. However, it takes time, effort and the assistance of a trained guide. Preparation is not something to be embarrassed or defensive about.

Giving testimony or a statement of any kind is important, and it's strange and it's difficult. You won't be doing your job if you don't prepare your witness extensively.

More important, a witness who does not take the process seriously enough to prepare carefully is not doing his or her job either. It's critical for witnesses to understand that good preparation is not some kind of improper cover-up. It's not someone telling them what to say or making up a story. On the contrary, the point is to make the witness' statement more truthful by helping them to be more thoughtful, careful and precise. There's no magic to preparation, no wand a lawyer can wave to turn a client into "Super Witness." All you can do is work together to try to develop some of the understanding and discipline that will ultimately make the client's experience as a witness much easier and much more successful.

Preparing witnesses is one of the most difficult and important challenges many lawyers face, yet too many of us take it for granted and forget how unnatural and incomprehensible this process can be for a witness.

This podcast series will explore a wide range of witness issues including: the gaps between the witness' and the lawyers' understanding, what makes the witness environment so difficult, the challenge of certain types of witnesses and the 10 rules for all witnesses.

Like anything in litigation, we learn from each other. Your input and ideas are always welcome. And now let us begin.