March 17, 2020

Podcast - Rule 10: Witnesses Need to Use Their Counsel

Powerful Witness Prep Podcast Series

In the latest episode of his "Powerful Witness Preparation" podcast series, Witnesses Need to Use Their Counsel, litigation attorney Dan Small continues his in-depth 10-part series on the rules for witness preparation. In this episode, Mr. Small shares four crucial ways a lawyer can help their witness while they are on the stand. He explains that while there are differences depending on the type of questioning or proceedings, the types of help may include the following:

1) Privilege - A lawyer and a witness should be clear about their relationship. Both have to be vigilant to protect the privilege. Privilege issues fill volumes of case law and analysis. It can be confusing. Preparation with a witness's own counsel is strictly privileged and confidential. However, many questioners will ask about the logistics of the preparation. A witness shouldn't feel defensive about having prepared for this important event, but they must be careful about opening the door to privileged communications. What was said remains strictly off-limits, or the questioner may claim that the privilege has been waived.

2) Breaks - There are many things we do in our normal lives that are more exhausting in short spurts, but few that require the unrelenting intensity and focus of being a witness. It's a marathon, not a sprint. The witness has to prepare accordingly. Have your witnesses take breaks, early and often, for any reason or no specific reason. The challenge for witnesses is to know themselves well enough to take breaks before they really need them. In addition to combating exhaustion and distraction, breaks can be important for other reasons. One of those is the assistance of counsel. A witness's lawyer is the only "friend" in the room. A witness should break to talk to counsel for whatever reason and as often as they need to. Having the regular opportunity to take a break and to confer with counsel is far more important than any minor feelings of discomfort.

3) Objections - Make sure your witness knows if they are in a proceeding during which you are making objections, they must never make the mistake of treating them as irrelevant legal technicalities. If they see their lawyer getting up to object they must stop and wait. They should listen closely to any objection and response and consider it carefully. They may learn something important about the question and how it could be handled from the objection. When a witness hears "objection to form," it is also a bright red flag that there are problems with the question.

4) Errata Sheets - In a deposition or other form of testimony, where the witness and counsel have the opportunity to review the transcript and submit an errata sheet, too many lawyers treat the process as a trivial chore. It should instead be viewed as an important opportunity to continue the dialogue with your witness. There is some disagreement among jurisdictions, but the majority rule is that it is permissible to make substantive changes in an errata sheet. It is important to keep in mind that if the changes are too great the other side may seek to reopen the testimony. However, the benefits of a clear record outweigh the risks.

A witness will spend a great deal of time and effort working with counsel before questioning. It is absolutely necessary to use a combination of effort and experience at every stage of the process.

Listen to more Powerful Witness Preparation Podcasts here.

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