July 9, 2019

Podcast: What Witness Preparation Means

Powerful Witness Prep Podcast Series

In the second episode of his "Powerful Witness Preparation" podcast series, litigation attorney Dan Small dives right into what witness preparation really entails and outlines seven steps lawyers need to take when preparing witnesses for testimony. Mr. Small explains that too many witnesses are not adequately prepared because lawyers fail to realize that being a witness is an entirely different experience than anything the client has been through before. His seven steps for preparation highlight a key idea for both lawyers and clients to keep in mind: Testimony is not a conversation, and much of what makes for a good conversation makes for bad testimony.

Listen to more Powerful Witness Preparation Podcasts here.


Dan Small: Too many lawyers, including some very good ones, do not prepare witnesses adequately because they fail to understand how dramatically different being a witness is from anything else the client has experienced. Testimony is not a conversation. Much of what makes for a good conversation makes for bad testimony. And what it takes to be a good witness is often contrary to our normal experiences. As a result, it takes an extraordinary level of preparation to learn to do it right. Too many lawyers' idea of preparation falls short in at least two key ways. One, it's not comprehensive enough, and two, it's not tough enough. It happens too often: I get called in around the country to help prepare important witnesses. We've been working hard to prepare a witness for hours or days, and they expressed surprise at the length of the process. They say something like, "I was deposed before, and my lawyer just told me to meet him half an hour before the deposition and we'd prepare." That's not preparation.

True witness preparation is an extensive and intensive, multi-step process. It demands a high level of time, energy and effort from both the client and counsel.

Lawyers do not serve their witnesses well by being too kind and gentle in preparation. On the contrary, I tell witnesses that the tougher and more realistic we are with them, the better prepared they will be for the real thing. At the end of the whole process, every witness should come out of the real experience and say what many of our witnesses say to us, "Oh, you guys were tougher than that." That's a sign of success, relief and high praise, and you can make it happen. There are seven key steps to prepare your witness, each requiring careful thought and thorough implementation.

Step 1: The Introduction

Imagine sitting down on a park bench and having a total stranger come up and ask you questions about your most private details and troubling secrets. You'd think they were crazy, wouldn't you? And you certainly wouldn't answer in any depth. Why are we, as lawyers, so arrogant that we think we can do just that with someone just because they have the label of client or witness? You can't, it won't work, you're a stranger no matter what the environment. Whether you're representing them personally or you're an agency or corporate lawyer, the fact that you're a stranger makes them doubly uncomfortable. Take the time to get to know your witness and get comfortable with each other both before you meet and at the outset of the meeting. What do you need to know about your client's background, their interests, their family? What does the client need to know about yours? How can you find a common bond? How can you gain trust and understanding? A time invested upfront to do this is well worth it.

Step 2: Review the Facts

Encourage your witnesses to go over as much as they know about the likely subject matter, the questioning. Who? What? When? Why? Where? How? What do they remember? And what might someone else remember? Going through it the first time is rarely enough. Go back over the facts in slow motion to catch more of the details and issues. I tell witnesses that if you watch sports on TV, they repeat in slow motion because real life happens too fast to talk about it in real time. Nor can anyone talk about it and explain it as fast as it happens. Same thing for witnesses: Slow down and go back over it. Witnesses often ask, "Should I study?" This question of whether or how much to review past documents, events and so on will vary from case to case. Sometimes it's important to be familiar with the facts or documents to anticipate and rebut biased questions. Sometimes you risk recreating inaccurate memory. And finally, sometimes it may be best to just let sleeping, or forgotten, dogs lie. This is an important issue for you and your client to consider and discuss.

Step 3: Review the Process

No matter how many episodes of their favorite legal TV show they've seen, and no matter how many times they've been a witness, don't make the mistake of assuming that a witness really knows or understands this bizarre process. Apologize, if you must, for erring on the side of too much information, but then do precisely that: err, if at all, on the side of too much information. Who? What? When? Why? Where? Every witness needs to hear and understand the basics. Who: Who's involved? Who will be there? Who will ask the questions? Who will object? And who will see it? What: What happens when and in what order? The oath, the questions, which side? When? What should I bring? And what should I wear? When: When does it start? When are the breaks? When does the day end? And when will I hear more about it? Why: What's the meaning, importance and goal of this testimony for each party? Where: Where is it? How do I get there? What kind of room?

Step 4: Put It Together

Understanding the facts and the process, how do you communicate effectively in a question and answer format? The facts don't change, but the method of answering questions is something that takes a lot of getting used to. Most of witness preparation is directed at this crucial part of the preparation. And we'll come back in later podcasts to the critical 10 rules for witnesses.

Step 5: Anticipate Problems

Now is the time to identify things that may seem to be potential problems and prepare accordingly. Witnesses can have a large range of concerns, large or small. Counsel has to ask for them and listen for them. One common anticipated problem is nervousness. How do I avoid being nervous? How will I be able to think clearly when I'm so nervous? I give witnesses the same answer that I give when I get the same question teaching trial practice to law students and to lawyers. Don't be nervous about being nervous. Everyone is nervous, and that's OK. You should be nervous — this is important! Moreover, I want you to be nervous. It's the best way to sustain the kind of energy and intensity required to handle this process properly. So how does your witness overcome it? By not worrying about the disease and just deal with the symptoms. Don't worry about the fact that you're nervous. Just think about what it is you do when you're nervous and deal with that. If you talk too fast when you're nervous, make an extra effort to slow down. We'll work on it. Whatever it is, do the best you can, but don't be nervous about being nervous. Anticipate other problems and address these problems before testimony is given. Does your witness need a translator? Does the witness stutter? Do they need any special accommodations? What are their fears about this process, their job, their reputation, whatever? Finally, prepare them for questions about the preparation. If the witness is a client, explain the attorney-client privilege and that the questioner may ask about the logistics of preparation, but not what was communicated orally or in writing. If the witness is not a client, make sure they understand the absence of privilege so they're not caught by surprise. And make sure they understand that your first, last and fundamental message to them is: Always tell the truth.

Step 6: The Dry Run

All right, well, let me preach for a moment here. Some years ago, I had a traumatic experience. I had to help teach my twin girls to ride bicycles, with all the scrapes and bruises and tears that came with that process. Try as I might, I could not teach them to ride a bicycle by just talking to them. Sooner or later, they had to get on the darn things and try it for themselves. All I could hope was to be there to help cushion the blow when they fell and console and teach them what had happened. The same is true for teaching someone to be a better witness. No amount of discussion can fully explain the question and answer process. Like anything difficult and unnatural, doing it right takes practice. The best approach is to do a dry run so your client can experience the process firsthand. It doesn't need to be formal or cover all the possible topics, so long as it gives a clear sense of the process. However, the tougher and more realistic it is, the more helpful it will be to the client in the long run. I often have another lawyer in my office ask the questions, both to make it less awkward for everyone in role playing and to show the witness how I might act in representing them at the real thing. Do a dry run with every witness, and you will be amazed at how productive it is. After you've gone through all the background information, reviewed the facts and reviewed the 10 rules I'll discuss in a separate podcast, now they can see it in practice. Ideally, a dry run should be recorded in some fashion, if practical and if covered by the privilege. This doesn't need to be any more elaborate or expensive than the case a client allows. Borrow a tape recorder or a video camera, it can be that simple. Adapt a dry run to the proceeding. If you're preparing a witness for a deposition, you may want to have a transcript of the dry run prepared, since the goal of a deposition is really to produce a clear and accurate transcript. This will emphasize the strengths and weaknesses of their testimony and allow them to appreciate the final product and address any weaknesses. Most clients have never seen their spoken words in print, it's a revelation to them. If you're preparing someone for videotaped or live testimony, the transcript isn't quite as important, but the appearance is. The dry run may be videotaped. The important thing is to record the testimony in whichever way will help you and your witness.

Step 7: Review the Transcript

Another great benefit of doing a dry run is to generate and review a transcript or video depending on the case and the resources. This can mean anything from a full videotape session with a court reporter to a simple tape recording that can be typed up for review. If there are inaccuracies, good — it can prepare you and your client for the inevitable mistakes in any real transcript.

The witness environment is terribly unfair and deceptive. It has all the appearances of the questioner being in control. If the witness and counsel accept that deception, they've lost. This is, after all, the witness' testimony.

True witness preparation is all about leveling the playing field and helping the witness to take control. You can and you should make a real difference.

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