Source of article Jury Insights.
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.
Staying in Reality
Showing Appropriate Attitude
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?
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