Source of article Jury Insights.

Part 1:




I started out to write a one page post with a title  like top ten tips for witness preparation. But, it ended up expanding,  so I am going to send this out as a series of 4 posts exploring the very basics  of witness preparation–what one of my clients calls testimony  101.

In over 18 years as a trial  consultant I have worked with scores of attorneys in preparation of their key  witnesses. Preparing the key witness is an amalgam of teaching legal case  strategy and tactical communication skills using role play practice under  “game-like” conditions.

Time and  Patience

Are you spending enough time  with your key witness?

Every legal case has at least one  “key” witness. Almost all important evidence has to be Sherpa-carried-in by  witnesses. Given the significance of key witnesses to legal cases, it is  somewhat extraordinary that so many attorneys pay so little attention to the  providing key witnesses with the skills to carry-in the facts.

To make an analogy, a fashion  designer expends tremendous creative talent, energy and money to bring designs  to fashion show “trials” where the goods are going to be judged by the jurors  (critics and buyers) who matter. It’s hard to imagine a designer giving an  attractive amateur with no experience or skills an hour of instruction on how to  walk down a runway and expecting to get an effective performance.

Yet, many attorneys do little  more that give the “key” witness a somewhat desultory review of the case along  with spoken instructions of what to do and not do during testimony. The attorney  talks “at” the witness, and the witness performs the same nodding gesture you  typically see from the bobble-head dog in the rear window of the car ahead of  you.

After you have put scores of  hours into working up a case, it is mistake to think that an effective key  witness preparation can be accomplished in a one or two hour session. The most  common error that attorneys make is the assumption that what they tell the  witness is actually being understood by the witness. If you have not seen the  witness actually perform the skill a few times during role-play simulation, you  should assume that the witness has not learned the skill.

Key witnesses come in all flavors  of competencies to grasp strategy and develop skills, just as attorneys have  different abilities and temperaments needed to teach and coach effectively. If  you have a sense that you do not have the skills, time or patience to do prepare  your key witness, reach out for expert professional assistance.

In this and subsequent posts, I  am going to review the most basic types of instruction that attorneys should  provide to key witnesses. This instruction must be followed with role play  simulation to demonstrate skill integration.

Part 1:

Getting  oriented


Part 2:

Taking  Turns

Being  Brief

Part 3:

Leading  Questions

Staying in  Reality

Part 4:

Showing  Appropriate Attitude

Being  Spontaneous

These posts will describe the  necessary first steps, but it is far from sufficient. If you don’t have a  checklist of skills for your witnesses, this series of posts will give you a  good start.

Getting Your Key  Witness Oriented

High  school teacher tells class:

The  Shah of Iran was “deposed” in 1979.

Attorney  tells witness:

You  are going to be “deposed” in October.

The word deposition can sound  pretty frightening to the non-lawyer. The process of deposition requires a  thorough explanation.

Begin by explaining the entire  mechanics of the deposition, creating a visual picture (with diagrams if  necessary) of the entire sequence of events from start to finish.

Assure the witness that you will  meet beforehand or that you will be at the deposition ahead of the witness.  Explain the context of the deposition-the location, the configuration of the  room, who will be there (attorney, opposing counsel and court reporter…  support staff for attorneys), where everyone will be seated, the swearing in,  the amount of time you anticipate the session it will take, the opportunity for  regular bathroom breaks and other comfort concerns.

Explain that the goals of  opposing counsel at deposition are both benign and malignant. The benign purpose  is to provide opposing counsel with the opportunity to learn the extent and  quality of the facts the key witness brings to the advocacy of the matter. The  malignant purpose is that opposing counsel is there to minimize and/or undermine  the impact of facts adverse to the other side’s case.

Hiding the malignant purpose of  deposition is not a “don’t tell the children” option for the attorney. The  witness will need to learn some skills for self-protection. The witness is going  to feel anxiety about being the prey in a litigation safari.

Therefore, witness anxiety must  be anticipated and managed. It is a fact that the more anxious a person is, the  less likely that person will be capable of absorbing and retaining new skills.  It is important to introduce the stresses of the deposition room into the  training process in a step by step manner so that the witness develops an  ability to contain anxiety.  Practicing skills completely outside the  deposition-like game day context of stress of anxiety is not sufficient  preparation for the main event.

The first step in orienting a key  witness is to ask, “What are your concerns about your deposition (or trial)  testimony?”  Write down each and every concern. When you have exhausted all the  concerns, read them back and provide reassurance that during the preparation  process you will address each of the witness’ concerns. Explain that you will  help the witness understand which facts are most important to the case (the  landmarks), and teach skills to address the ways in which opposing counsel may  try to undermine the impact of these landmark facts (the landmines).


Your spouse:  What hotel did we stay at in Chicago two years ago?

You: Huh?

The elusive obvious about the  role of memory in testimony is that all questions ask the witness for  recollection of something.

Every response the witness will  give will in some way slice and dice a particular recollection into extent of  knowledge and degree of certainty.

Instruct your witness that the  most critical component of testimony is consistently telling the truth, and that  ALL truthful responses fall into three categories-the three R’s of being  truthful: (1) I can RECALL it; (2) I can’t recall it, but it’s in a written  RECORD; or (3) I can’t recall it, but it’s my ROUTINE.

Almost all the time spent in  witness preparation has to do with helping the witness gain confidence and skill  related to parsing a response into one of these categories, and/or qualifying  the response according to extent of knowledge and degree of certainty.

Often, people are not 100%.  Instruct the witness to qualify certainty of some answers with introductory  phrases such as, “to the best of my recollection,” “it is my best recollection,”  “it is my current collection,” “I’m not completely certain but it is my  recollection,” or use appropriate qualifying words such as “about,”  “approximately” and so on.

The fallback is for the witness  to admit lack of recollection or knowledge, and/or qualify the response  according to a possible record or routine.

“I have no way of knowing that  because I don’t have first-hand experience of that.”

“At this point in time, I don’t  have a clear recollection of that.”

“I can’t tell you exactly when it  happened, I can only tell you the order in which it happened.”

“I don’t remember exactly what I  earned last year, but I believe you have my tax return (record).

“I can’t tell you exactly what  the wording of my job description included, but I am sure a copy of it (record)  is in the HR office.”

“I don’t have a clear  recollection of putting on my seatbelt, but I routinely wear my seatbelt. There  is a bell that will sound if a seatbelt is not buckled, and there was no  bell.”

“I don’t remember what I fed the  children that night, but I know I fed them. We routinely eat at 6:00PM.”

All the tips that follow in  subsequent posts merely help the witness stay in charge parsing responses into  the three R’s of being truthful and a clear articulation of extent of knowledge  and degree of certainty.

Next in Part  2:

How do you  train your key witness in the discipline of “taking turns” and “being  brief”?

Alan J. Cohen Ph.D.  LLC