Witness Preparation

Witness Preparation

     Trial preparation is a long and tedious process.  By the time we complete preparing our cross examinations, direct examinations, opening and closing arguments we often forget to take the time to thoroughly prepare our witnesses.  However, if you have a big case and you will be putting your client on the stand you definitely need to take the time to prepare your witness for this process.  We, as lawyers, take public speaking for granted.  We forget that public speaking is a terrifying process for many people.  To this end we need to take the time to prepare our witness to take the stand at trial. 

     The best way to do this is to practice with your witness.  When I say practice I mean rehearse.  To simply give your witness a variety of different pointers ahead of trial will not be sufficient.  In fact, doing this will likely be counterproductive as your witness will become apprehensive and nervous with each new piece of advice you give him or her to remember.  It is impossible for the witness to learn without actually practicing and rehearsing the suggestions you give them.  The key thus is to practice.  You can begin by practicing in your office or in the office conference room.  That being said, if the case is a large one, you should secure a mock courtroom so that your witness can practice testifying form the stand.  The witness needs to be comfortable in the exact situation or context in which he or she will testify in trial.  To make the situation more real, bring in a few of your staff members or any other individuals you can convince to watch your witness practice her testimony.  With mock jurors watching, your witness will become comfortable telling her story in front of others.  The idea here is to replicate real courtroom conditions.  This means that you need to keep things authentic during practice sessions.  Thus there shouldn’t be any joking around in these practice sessions.  Lawyers and witnesses should wear the same type of attire in rehearsals as they will wear during trial. 

     Your witness is going to ask you what he or should say with the intent of memorizing his or her testimony.  You need to let your witness know that he or she should not be memorizing what he or she will say.  This is not the point of the rehearsal process.  Remind your witness that this is his or her testimony and not your testimony for them.  Remind your witness to always tell the truth and never to exaggerate a point on the stand.  You need to teach your witness to look at the jurors when he or she is talking.  If the witness is not looking at the jurors then the witness should be looking at the lawyer asking questions of the witness. Teach your witness to look from juror to juror without looking at any one juror for an inordinate amount of time.  Witnesses, or lawyers for that matter, who look at one juror too long make jurors feel uncomfortable.  Tell your witness to give some eye contact to each and every juror for a short period of time as opposed to simply focusing on the same two or three jurors throughout the trial process.  Have your witness look good for courtroom but don’t have your witness dress in clothes they are unaccustomed to wearing.  You want your witness to appear authentic in trial.  If your witness shows up at trial wearing clothing that she is completely unaccustomed to then you can be sure that she will not be comfortable speaking in trial and this lack of comfort will not come off well to the jurors.  The idea is to have the witness present information in a relaxed smooth way so as to convey credibility. 

     Begin your coaching process by simply conducting a direct examination of your witness and having another lawyer conduct a mock cross-examination.  Do not give your client any pointers before this first rehearsal session.  You want to see what your witness does naturally before you begin the coaching process.  After the first set of mock examinations conclude you should begin by giving your witness positive feedback.  Focus on what the witness did well.  Chances are the witness will naturally do some things better than others, let the witness know what these good things are.  Then, out of the presence of other observers, tell your witness one or two suggestions that they can improve on.  Be sure not to give your witness more than one or two suggestions at a time.  If you do so you will inhibit learning and create apprehension in your witness.  So simply give your witness a couple big ticket items to focus on.  Again, when you give these suggestions tell the witness the good things that they are doing so as to create confidence in your witness.  You want your witness to be confident above all else.  To this end always give positive feedback along with any suggestions you may have.  When you consider what suggestions to give your witness keep in mind that you do not want to attempt to make your witness into someone who the witness is not.  If you do so the witness will lose confidence in herself and the jurors will see right through the juror’s façade. 

     When you prepare a witness to testify it is often good to start be giving the witness a big picture idea as to what their purpose is in trial.  Once they have an idea of what their purpose is they can better tailor their testimony to your ends.  Remember, that in trial you want to cut as much useless information as possible.  Thus you want your witness to focus his or her testimony on important issues and not to waste words on filler content.  By giving your witness the big picture and then going through several rounds of mock direct-examination your witness will have a good idea as to what testimony you are fishing for.  In this way, not only will your witness become comfortable testifying but your witness will testify to important points when asked open ended questions in trial.  The last thing you want is to have to lead your witness on direct examination in order to get your desired answers.  Leading questions detract from credibility.  Open ended questions on direct is always preferable.  Thus you want your witness well prepped to answer your open ended questions with quality information. 

     You want to have another lawyer do a few rounds of cross examination on your witness.  Always have another lawyer besides yourself conduct mock cross examine on your witness.  This will prepare your witness for cross examination at trial.  He or she will be shaken up much less at trial if he or she has been though a couple rounds of cross in mock examination.  Here is where you coach your witness to tell the truth, not exaggerate, and only respond to the question which was asked. 

     When you coach your witness, you need to be doing more than simply rehearsing for the sake of putting your client at ease and having him or her think about testimony.  You should be coaching your witness on volume and articulation.  Most people don’t speak publicly on a regular basis.  You need to have your witness practice speaking loudly enough for the jurors to easily hear the testimony.  You need your witness to articulate so that the jurors can understand his or her words clearly.  You need to make sure that your witness knows to always sit up straight in the witness chair, to never slouch.  Coach your witness to keep her hands away from her face.  This is a common tendency for people who are speaking in public.  Have her keep her hands in her lap.  Your witness will have a tendency to look to you, her trusted counselor, when she is feeling intimidated under cross-examination.  You need to teach your witness to not look to you as this lack of confidence will be apparent to the jurors.  Have the witness look at the questioning attorney or the jurors as she responds to opposing counsel on cross-examination. 

     A good tool to use in witness preparation is the video camera.  Go through several sessions where you record your witness under direct-examination and then cross-examination.  Then playback the video to the witness.  Discuss with your witness what he or she would like to do better.  Likely, your witness will now some of his or her weaknesses.  Always better for your witness to make the suggestion herself rather than have you introduce the weakness to her.  Then discuss with your witness ways in which they can improve their performance.  Remember that the witness should be given no more than one or two items to work on per round of rehearsal.  By the time you have gone through a few sessions of videotaped rehearsal your witness will likely see marked improvement in his or her performance. 

     A lot of the information I wrote about above comes from David Ball.  I have read many of his books and attended several of his seminars.  David Ball is considered one of the best jury consultants and trial consultants in the nation.  He can go on for days on this type of material.  I know that he and Don Keenan have produced some excellent information on witness preparation.  David Ball has a book called Theater Tips and Strategies for Jury Trials which is superb.  I would suggest you read any of his publications for a better understanding of this subject matter.     

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