Podcast: Three Witness Excuses to Avoiding Preparing

Dan Small: When someone is called to be a witness of any kind, no memo or book or outsider's advice can replace the need for effective preparation. That's obvious to anyone who has experience dealing with this question and answer format. However, it's not so obvious to many laypeople or lawyers. There are lots of common excuses for a witness not to bother with preparation, but common doesn't make them right. Let's consider three of the most common and how counsel might respond.

Excuse 1: "I'll just go in and tell my story."

Parties to litigation are often convinced they know their cases and they don't need outside interference. For someone who is not a party or a target, but just an outside observer, being a witness can be a large and disruptive imposition. The notion of spending even more time just preparing to be a witness can seem like an unnecessary burden. Moreover, since the witness knows what the truth is, why does he need someone telling him what to say? The temptation to just go in and tell my story without preparation can be great. It can also be an invitation to disaster. Both lawyer and client must understand that the main goal of preparation is to level the playing field on which the client will be questioned. Otherwise, it's an extraordinarily unbalanced field. Think about all the advantages that most questioners have before they walk in.

• Experience: Whether the questioner is a lawyer, investigator or other professional, he or she has probably spent a lifetime of education, training and experience preparing to question witnesses. This is what questioners do for a living.
• Preparation: Questioners may have spent days, weeks, months or even years working on the matter. They have explored, inside and out, a subject area that may be only a vague memory to everyone else.
• Documents: They have reviewed the relevant documents carefully, which these days usually includes emails and texts, and they are ready to compare any answers to those documents.
• Other witnesses: Questioners probably have questioned, or plan to question, others in the matter, using what they learned from them to generate questions to ask now in comparing the answers to those of others under a microscope.
• Script: Pulling together all of these advantages, questioners have spent time specifically preparing their questions. Language sequence, all kinds of things are important here. They may have a script or a list of questions, documents ready to show and other ways to make sure they are prepared. They know where they are going, but the witness does not.

A potential witness and his or her lawyer should think about that list carefully. How many of these preparation tasks has the witness done? Let's assume you don't act foolishly in other important matters. Why would anyone be foolish enough to ignore all of the disadvantages and just walk in unprepared?

The reality is, there are no shortcuts. Spending time on preparation is the only way to make the time your client spends being questioned less painful, more effective and ultimately shorter.

Excuse 2: "It's too expensive."

Expense takes many forms: time, money, anxiety and much more. Being a witness can take an enormous amount of each, too much in many people's eyes. Even if an outside party is paying a witness' legal fees — an employer, a liability insurer, a D&O insurer — be sure to ask, even if it can't make up for the lost hours and days in both preparation and actual testimony. However, inadequate preparation can lead to poor testimony, and that can both be far more painful and time consuming. Bad testimony, we say, is the gift that keeps on giving. Take the time now to avoid that time later. When it comes to money, there's no doubt about it, today's legal fees are extraordinarily high. If the witness has to pay a lawyer, it adds a new dimension of pain to an already burdensome experience. However, the real issue with cost is always relative, compared to what? Is true preparation expensive? Yes, of course it is. Is it too expensive? Compared to what? What's the alternative? Saving time and money up front by being a witness without counsel, or without extensive preparation, can cost dearly later, in time, money, reputation and heartache. Witness preparation is too important, it's the wrong time and the wrong place to save money.

Excuse 3: "I didn't do anything wrong."

This is the toughest and the most common misperception. Even people who use lawyers all the time for real estate, business or other purposes may share the common notion that as a witness, they need a lawyer only if they have done something wrong. Counsel has to understand that misperception and help the witness to get around it. I tell clients to think of me not necessarily as their defender against bad things, but as their tour guide through a strange and dangerous jungle. Given the harm that can come to people as a result of these inquiries, whether or not they've done anything wrong, a witness is foolish to enter this world alone. As the old maps of the world used to say in describing unknown waters, "This way be dragons." Moreover, even if the witness hasn't done anything wrong before getting onto the witness stand, the testimony itself may create a wide range of issues or problems. For example, the witness usually won't know what has gone on in the matter before or who has said what. A lawyer may be able to find those things out, whether through joint defense agreements or other avenues to help the witness avoid unnecessary conflicts and other pitfalls. In that and other ways, a lawyer can help guide the client through the risky process as safely as possible. Potential witnesses should never feel awkward or defensive about undertaking extensive preparation. It's their right, and it's the right thing to do.

Finally, having chosen a lawyer to prepare with, it's critical that the client use that person exclusively. The client should not talk to anyone else about the matter. No other conversation is privileged, and questioners love to ask, "Who else did you talk to about this matter?" If that makes a client uncomfortable, I encourage them to use me as the bad guy: "Gosh, I'd love to talk with you about this, but my lawyer told me that I can't." Otherwise, witnesses open themselves, and those they speak with, to unnecessary questioning. If you listen carefully to a witness' reluctance to prepare properly, you'll usually hear some version of one or all of these three big mistakes. Do your job, don't let them happen.