Source of article The Advantage Blog - Tsongas Litigation Consulting.
Have you ever walked away from a meeting with a witness thinking, “She’s going to do just fine,” only to be dismayed when the person testifying is not the same person you prepped? Good witness preparation is more than sitting down and talking to the witness about their testimony. But too often witness preparation is just that – an attorney sitting across the table from a witness telling them about the case, their role in the story, and reviewing key documents. The trouble is that witnesses are often very nervous about their testimony and insecure about their ability to do a good job. And just talking to them is not enough. While it might appear to make them feel better, they are not actually prepared for the foreign question-and-answer event that is to come. The only way to ensure that you have an accurate assessment of how a witness will do under pressure and to adequately prepare a witness for “game day” is to simulate the real thing.
Ideally, witness preparation is a two step process – 1) meet early to assess the communication style of your witness, and 2) meet closer to the actual trial for a “dress rehearsal.” This article provides a few basic steps to put you on the right track in each of these meetings.
Step #1 – The Early Meeting
The first meeting is your chance to meet with the witness and get a sense of what potential communication pitfalls you may be dealing with. You can learn early if your witness is anxious, too eager to explain every facet of the case, feeling guilty, or overly defensive. The first meeting can be a general discussion geared toward helping the witness overcome some of these problems. This meeting is also your chance to listen to the witness talk about the case in his or her own words. Write these down. These are great themes or “safe harbors” that can be used in your later preparation session.
Make Them Comfortable
The witness needs to feel comfortable before diving into practicing the tough questions. Most witnesses have never testified before – it’s a completely foreign experience where questions aren’t what they seem and answers can be twisted and used against you. It’s not the typical conversation style they’re used to. They may also feel like the case will be won or lost on their testimony alone. Ninety-nine percent of the time that’s not going to be the case. Allowing them to air their worries and concerns early, and giving them context for how their testimony fits into the overall case, will likely lay those concerns to rest, and will make for a better practice session later.
Start Thinking About Themes
Ask the witness, “At the end of your testimony, what do you want the jury to know or understand about you?” This simple exercise will invite the witness to explore what is most important to them about their testimony. A nurse in a recent medical malpractice suit said, “That I truly care about my patients, that I always document my chart, and that I am proud of the care I provide.” This helped her frame her own testimony and answers, circling back to those three themes that she knew about herself and wanted the jury to know as well. It also let her know that even when under attack, she can rely on these safe harbors that make her feel strong, competent, and in control.
Help Them Feel Good About Their Role
In a way, these early preparation sessions can be therapeutic for the witness. It gives them a chance to talk about the case without worrying about retaining all the testimony-related information. Get them talking and boost their confidence by asking them what they think they did right in this case, rather than only focusing on what they did wrong. Ask them, “What are you most proud of?” “Can you help me understand your job?” “What should the jury know about your accomplishments?” These kinds of questions allow the witness to talk about positive things rather than only the often fear-inducing process of testifying.
After this initial meeting, schedule a time closer to trial to engage in a mock question-and-answer session. If time does not allow the opportunity for two separate meetings, break up your single meeting into two parts, starting with the above recommendations. Take a coffee or lunch break and come back for Step #2.
Step #2 – The Question and Answer Practice Session
The second phase of witness preparation should be designed to be more like a dress rehearsal than a discussion. The following are a few easy tips to make your witness preparation sessions most effective.
Practice Like It’s the Real Thing
Clarifying the scope of the witness’ testimony and reviewing documents must be done. But don’t stop there. Dedicate several hours to practicing the questions and answers as if it were the actual deposition or trial testimony. Preparing a witness for testimony is no different than preparing a child for her first at bat. You wouldn’t just talk about how to hold and swing a bat; you would throw pitches and let her swing away. Even when you think your witness understands the rules of the game, you will not know how well they actually perform until you see them in action.
Practice in Blocks with Feedback In Between
Resist the urge to “correct” answers in the middle of a question and answer simulation. It’s too easy to stop the role-play to give tips on how to give a more credible answer. Instead, make note of the teaching point and continue the practice questions. Witnesses become overloaded with information when every answer is met with an improvement point. We’ve seen witnesses deteriorate when too much instruction is given. They feel like no answer they give is the “right one.” When this happens, witnesses tend to regurgitate the answers they think you want to hear rather than use their own words. So, practice for at least ten to fifteen minutes, then chose one or two teaching points to discuss.
Limit Feedback During Each Feedback Session
“Sit up with your hands on the table. Use complete sentences. Maintain solid eye contact. Listen to the question carefully. Don’t answer outside the scope of the question. Try to limit answers to just one or two sentences. Oh, and…” While it might be tempting to unload all of your sage advice at once, give feedback in a slow drip. Focus on no more than one or two techniques at a time, starting with basic techniques and adding more complexity as the witness improves. For example, teach a witness to answer in full sentences (rather than just “yes” and “no”) to slow the pace. “John, when we go back on camera, let’s practice having you give a complete answer. For example, ‘Yes, I do have a Master’s Degree.’ Or ‘No, I would not say that is an accurate description.’” Practice just that technique until the witness has become proficient before giving more advice.
Use Video as a Teaching Tool
Tablets make using video as a teaching tool easy and unobtrusive. Setup your iPad or tablet (or any recording device) from the perspective of the questioner. Start recording. Make note of the time stamp where you want to play back testimony. Often, the best use of video is to play back portions of the testimony where the witness missed negative imbedded assumptions in the question. In the heat of the questions and answers, the witness missed the fact that he agreed to a false premise in the question. “Q: So, there is a better installation technique out there, but you chose to use the front screw mechanism, correct? A: Yes, that’s correct.” Play back that question and ask the witness to evaluate the question. It’s likely that he’ll say, “But there isn’t a better technique out there.” You’ll get more out of allowing him to catch his mistake than by simply telling him that he missed a loaded question. Your witness will do much better at listening for negative language in subsequent practice segments.
Watch for the Silent “Huh?”
During a practice session, you may notice a witness use a long pause, crunch their forehead, or give some other look of confusion before they give a low-credibility answer. Take note of that nonverbal cue and later during your feedback session, ask the witness what they were thinking. More often than not, the explanation given off camera is much better than the answer they gave during the session. “Mary, why did you look so confused before you answered my question about leaving the register to clean up the water spill?” “Well, we’re not actually allowed to leave the register for security reasons, so I didn’t understand why you were asking how quick and easy it would have been to keep the customers safe. It technically, would have been easy, but I’m not supposed to leave my drawer.” Clearly there was a better answer than simply agreeing. Instruct the witness to trust their instincts and listen to the voice in their head. This is often a turning point in preparation. Witnesses think they are supposed to simply agree or disagree with questions and don’t realize that they have the ability, power, and control to give a more accurate and credible answer.
End on a high note
Nerves and fear of failure is one of the biggest hurdles in effective witness testimony. After you are confident that your witness is armed and ready to give controlled, confident, credible testimony, videotape one last segment designed to showcase their skills. Ask only the questions you know they have mastered. Let the witness shine. Then show them the clip and tell her she’ll knock it out of the park. Once the witness is familiar with the process and confident that she has learned how to play the game, she will be able to put her best foot forward.
This two-part witness preparation strategy will allow your witness to first say their part, air their concerns, and get comfortable with the idea of testifying before then practicing in a risk-free setting. Both you and your witness will feel more confident and prepared when it comes time for them to take the stand.
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