August 20, 2019

Podcast: Seven Witness Preparation Mistakes Lawyers Make

Powerful Witness Prep Podcast Series

In the fifth episode of his "Powerful Witness Preparation" podcast series, litigation attorney Dan Small looks at the seven most common mistakes lawyers make when preparing witnesses for trial. Cautioning that "a failure in preparation is a failure in representation," he summarizes these mistakes and provides solutions that will help lawyers bring their witness preparation to the next level.

Listen to more Powerful Witness Preparation Podcasts here.


Dan Small: Before a lawyer can convince a client to take on the burden of preparation, the lawyer has to be convinced. Unfortunately, while law schools may do a good job of teaching legal principles in theory, they often ignore the true focus of real-world legal practice: the client. Just like the political campaign whose mantra "It's the economy, stupid" reminded them of what was most important, law schools should perhaps add "It's the client, stupid" to the inspirational Latin phrases that adorn their ivy halls. For now, the reality is that too few places really teach lawyers how to deal with clients, and certainly not how to teach clients something as difficult and foreign as the process of being a witness. The commonly accepted notion that lawyers will somehow pick up these skills as they go along is dangerous nonsense. At best, it's a recipe for a long trial and error learning process, and real clients with serious problems are the guinea pigs. As a profession, we can do better in this important area. Meanwhile, even experienced lawyers may share some of the seven common misperceptions that lead them to fail to prepare a client or witness adequately.

A failure in preparation is a failure in representation. Don't make these same mistakes.

Mistake 1: "I'm too busy."

No matter how busy you are, it's hard to ignore a formerly scheduled deposition or hearing or whatever. Yet it's often too easy for a lawyer to ignore the preparation stage. After all, the client usually doesn't understand the importance of preparation, and the lawyer has other, more immediate demands on his or her time. However, you are not properly representing your client if you allow an appearance as a witness without thorough preparation. You must find the time to work together, or don't take on the representation.

There are some ways that you can make the time you spend more efficient. For example, we give the client an introduction memo to read in advance. Encourage the client to read it carefully before your next meeting and to write any comments or questions on it, then use it as a basis for discussion every time you meet. Second, use an associate or paralegal to organize documents, do an outline of the matter, serve as a base and even to conduct the practice questions. Still, nothing can replace the substantial time commitment required for this process. Some years ago, as general counsel to a national healthcare company, I gave a talk to a large group of doctors on litigation, with particular emphasis on the importance of careful preparation before giving any testimony. Toward the end of my talk, a doctor in the back raised his hand and said, "Hey, that sounds great, Mr. Small. But when I had to give a deposition recently, my lawyer called me up and told me to meet him half an hour before my testimony and we'd prepare. What should I have done?" What lawyers and clients should understand is that's not preparation. Get another lawyer. Be an educated consumer. Preparing someone for an unnatural and challenging witness environment takes a commitment of time and effort from both lawyer and client.

Mistake 2: "The client's too busy."

Many lawyers don't see or don't want to see how vital good preparation is for their clients, and clients don't see it either. They don't want to take the time out of their busy lives to pay a lawyer to help them do something that they don't think they need help doing in the first place. The lawyer must accept the obligation to push and push hard to overcome this reluctance. None of us likes to push a client, but we're not doing our jobs if we don't.

The most important battle we fight for our clients is sometimes with our clients.

Again, there are ways to work with the client to help accommodate the competing demands of preparation time and busy schedule. Nights and weekends may be necessary. Although preparation is done best in several hours, long blocks of uninterrupted time, I have in some instances conducted pieces of the process during long flights with the client, limousine rides and even international telephone calls. Flexibility, though, only goes so far. The need for time can be a constant battle, but it's a necessary one

Mistake 3: "All witnesses are created equal."

Part of the challenge of properly preparing witnesses is that it can't be done in a standardized cookie-cutter way. A client recently told me of a prior experience in which she had to give a deposition in a discrimination case brought by someone else against her employer. Her employer's lawyer represented her and in preparation merely gave her what was clearly a canned speech, having little to do with the sensitive issues in that case or with her. In fact, witnesses differ enormously depending on their background. Of course, there are some standard issues and some standard rules for all witnesses, but what might be appropriate preparation for one witness may be useless gibberish to another. You must adapt your preparation accordingly.

Mistake 4: "You never know what they'll ask."

Lawyers sometimes limit their preparation, either intentionally or unwittingly, because they don't know how to anticipate what a questioner will ask. They reassure their clients by assuring them that such ignorance is normal: "Oh, you never know, you know?" However, the fact is that you rarely know all the questions, but that doesn't mean you can't anticipate and prepare for many of them. You can't eliminate every surprise that our clients may face, but we can and should help minimize the number and severity. Who else has been questioned or testified in the matter? As a lawyer you can make contact lawyer-to-lawyer that might be awkward for the client. You may be able to get file memos, transcripts or just oral reports from counsel of what was asked of others and what might be asked of your client. Whatever the nature of the process, there are likely to be transcripts, discovery or other standard guides or manuals, sometimes CLE materials that will help you to understand and anticipate at least the general outlines of the questioner's approach.

Mistake 5: "Preaching, not teaching."

You can tell a client the required language for a legal document or what forms must be filled with a particular agency or court, but you cannot tell a client how to be a witness. That has to be taught. But doing this successfully means avoiding lecturing and preaching and instead using a variety of methods to work together towards understanding. "Just do as I say" rarely works with our children on even simple things, and it certainly won't work with clients on this far more difficult subject.

The key here is one of the same things that we tell clients: Listen, invite questions, ask for feedback, ask questions and generally do whatever it takes to make sure that you understand what this client needs in this situation.

If you get on a roll talking to your client, stop to ask questions or to see what else would help them. It may be more examples, time to review the summary memo and then discuss it, or more practice questions. Real learning happens in that kind of back-and-forth exchange.

Mistake 6: "The law is the law."

As a lawyer, you spent three years of law school and the entire span of your career, however long it has been, learning to speak a strange language, legalese. To help a client understand the challenges and choices he or she faces as a witness, you must relearn English. The more legal issues that are involved in the matter or your client's appearance in court, the harder you have to try to avoid legalese. A client who has learned the legal terms but not what they really mean truly has learned just enough to be dangerous.

Mistake 7: "Do I need to draw you a road map?"

Yes, you do! I'm constantly amazed and pleased when I'm the questioner to see witnesses who may have been prepared on the facts, and maybe even on how to answer questions, but not on the simple mechanics of what's going to happen. As a result, they walk into a strange room in front of strange people and realize I have to sit across the table for four or five, six, seven hours or whatever. And they're overwhelmed by the most basic logistics or procedure. They become shaken up, whatever preparation they did is largely lost, and they start the questioning at a severe disadvantage from which they may never recover. There is nothing condescending about being careful. Take the time to walk through exactly what the witness can expect. Slowly, step by step, with time for questions, start with the basics: Who? What? When? Why? Where? Which I covered in the "What Preparation Means" podcast. Then go through each phase of what will happen and apply these same questions. Is it recorded or transcribed? Videotaped? Is it under oath? Who will be there? Who will ask questions? Who do I look at? Who do I talk to? And so on. Being a witness is a strange and frightening experience, regardless of the preparation. Part of counsel's job is to provide a roadmap and make it less strange and hopefully less frightening by making it more familiar.

On some level, all lawyers know that preparation is important, but there are so many easy excuses to chip away at it and clients are rarely sophisticated enough to understand what's happening and what's wrong. Don't fall prey to those temptations. Find the time and make the effort to do it right.

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