Rules for Witness Preparation
Litigation Partner Dan Small authored a Litigation Commentary & Review series discussing the critical task of preparing witnesses. In the following series, Mr. Small sets for 10 rules for effective witness preparation.
The first rule for any witness is to take your time.
READ: Rule 1: Take Your Time
The second rule for any witness is to always remember you are making a record. It is critical to insist on the “discipline of clarity.” The most important person in the room is the one making the transcript or taking the notes.
The third rule for any witness is to always tell the truth.
The fourth rule for any witness is to be relentlessly polite. If a witness sounds negative or defensive, those who listen will assume that he or she has something to be negative or defensive about.
The fifth rule for any witness is to remember that questions have to be clear and fair to the witness. It is important to not answer questions they don't understand.
The sixth rule for any witness is if you don't remember, say so. A witness should never feel uncomfortable about giving the response "I don't recall."
READ: Rule 6: If You Don't Remember, Say So
The seventh rule for any witness is to avoid guessing.
READ: Rule 7: Don't Guess
The eighth rule for any witness is to not volunteer information. The job of a witness is generally to insist on clear and fair questions, answer carefully, briefly and precisely, and then go home.
READ: Rule 8: Don't Volunteer
The first part to rule nine for any witness discusses the credibility when dealing with a document, specifically the question of whether a document is accurate or, more importantly, whether the witness knows if it is accurate.
The second part to rule nine for any witness discusses the language and content of a document. Mr. Small outlines an absolute protocol that should be followed by a witness any time he or she is asked a question the answer to which is contained in or relates to a document: ask to see it, read it and ask for the question again.
The tenth rule for any witness is to use your counsel. Three of the most important ways a lawyer can help his or her client during the actual questioning involve privilege, breaks and objection.