Dr. Ken Broda-Bahm | Holland & Hart
Experienced trial lawyers know it is important that their witnesses are prepared to testify. At the deposition stage, and even when the likelihood of a trial is uncertain, it is critical to invest the time in making sure that the important witnesses know what to expect and are ready to go on record clearly and effectively, because the quality of the testimony can have a strong influence on case disposition and settlement value. But preparing a witness is not one step, it is many. Instead of focusing on the single goal of, “Let’s get ready to testify,” it helps to be a little more precise about what we are preparing and when.
Goals can overlap, and often the same witness will move unevenly through the various stages and functions of witness preparation. But, broadly, I see four distinct phases of witness preparation, and the focus and goals within each can be quite different. Often, it makes sense to separate these phases into distinct meetings, or at least distinct parts of a larger meeting. And even as you might jump between different goals, there is a benefit in knowing where you are at any given moment. In this post, I will outline the distinctions I see in the four types or phases of witness preparation.
Discovery
The first question is, “What is the witness going to say?” Early on in the case, this question will cover the basics, but as the case matures, it will expand to what the witness will say on each of the documents and on each of the more detailed lines of questioning that you expect. You find out what your witness will say by asking them first. The goal is to find out what they know, how they know it, and how firm they are on it. Obviously, the goal is to get at the truth, and no ethical attorney messes with that, but there are also questions about the extent, specificity, and perspective that the witness is bringing to their recall and to their judgment. So it is often a process of working out exactly what the testimony will be, and this isn’t practice, it is a discovery and a development of the substance of the testimony.
Therapy
The next question is how the witness feels about all of this. If the attorney is too pragmatic in thinking that feelings don’t matter, that could be a mistake. Even in cases that are not clearly driven by emotions, it does take some experience and perspective to deal with being in the hot seat, dealing with pressure of hostile questioning, and at times, dealing with the force of accusation attached to the claims or the defenses. Unless your witness is an experienced expert witness, they are not used to this. They have concerns, questions, and fears. Ask about those. Witnesses often need to be reassured that they will be able to get through it and fulfill their role in the case. They want to know that they will be okay. The certainty, confidence, and credibility that they express in the witness chair is going to be a product of that comfort.
Education
Whether the witness has never testified, or whether they’ve testified a few times, they will need a course or a refresher on what to expect. When will they testify? How long will it last? What is opposing counsel’s style? And, most importantly, what kinds of questions will they be asked? That process of setting expectations and filling in the knowledge gaps can also help give the witness that critical sense of control that translates into greater comfort and credibility. The education should also extend to the opposing counsel’s goals: What story are they trying to tell, and how does the witness fit into that story? Finally, it is important for the witness to know about the full bag of tricks that opposing counsel will have at their disposal — leading questions, built-in assumptions, planted language, control over pace, etc. — and the ways to deal with each.
Execution
Ideally the final stage occurs after the other three phases have been mostly addressed: We know what the witness plans to say on all important questions, and their psychological comfort and their practical knowledge on the process have both been addressed. Now it is time to move into mock Q & A while trying to stay “in character” by keeping the manner and the matter of the testimony as realistic as possible. Walking through the expected themes and topics of cross-examination, or for trial, the direct-examination outline as well, is the ultimate test on how the witness will do. If problems crop up at this stage, it can mean retreating temporarily to one of the other three goals. Ultimately, however, the mission is to take the training wheels off by engaging in longer and longer stretches of testimony without breaking to correct anything.
Ultimately, jurors’ decisions in the case are their reaction to the cumulative testimony. Every moment during that presentation of evidence is a chance to reinforce your story. A well-prepared witness — solid on all four of the bases — is a critical asset.
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