Best Practices for Attorneys Preparing Witnesses to Take the Stand at Trial

Preparation is the key to success for any trial lawyer. Time and time again judges say that they are amazed at how many attorneys come to court unprepared in some way - whether it be in researching the law, reviewing their case authorities, reading their file, speaking with their witnesses, or preparing their clients. This results in an embarrassment not only to the attorney, but also to his paying client, attorneys as a whole because of the inevitable stereotyping that exists, and the entire legal system. Sadly, the problem is so easily remedied and avoided altogether.

Witness Preparation Distinguishes a Case and its Trial Team.

Preparation can really set a lawyer apart in one specific realm of trial work - witnesses. A little work can go a long way. Delegation is even possible.

Specifically, in any civil case, other than the client, a trial lawyer will probably have a few other witnesses in a small case and maybe dozens in a larger, complex matter. Whether working on a solo trial team or as a lead or second chair attorney on a larger trial team, witness preparation is crucial to the trial preparation process. At the end of the day, witnesses and exhibits(documents or other tangible evidence) are the crux of the case to be presented.

Once convinced of the importance of preparation and its crucial role in trial work with witnesses, where exactly does this preparation begin? What does this preparation entail?

Who Prepares a Witness to Testify?

Whether it is done by a paralegal or the trial attorney, an interview or meeting with the witness needs to occur. It need not occur at one time either; it may be done over multiple stages or in sessions depending on convenience, availability, complexity of the case, and the role of the witness. At a minimum, a telephone call needs to be made. Preferably, the trial attorney will meet the witness in his office or at the court even if minutes before the trial. Depending on the level of training and experience of the paralegal, as well as the trust the supervising attorney has in the paralegal's trial preparation work, it is possible to have a staff person conduct a telephonic interview with trial witnesses the attorney intends to call in his case in chief. Yet, most attorneys would prefer to at least put a face to a name and have the opportunity to assess credibility, demeanor, and to be able to answer last minute questions, and address last minute concerns with their trial witnesses, so it is preferable to schedule a meeting (even if only briefly) at some point prior to trial.

What Should Be Covered in Initial Witness Preparation Interviews?

The witness needs to be asked the basic questions about their knowledge of the parties, controversy, suit, whether the witness has spoken to the other side, and if so, how recently, and what was said. Assuming the client has adequately prepared his counsel and the appropriate witnesses have been selected to testify at trial based on their favorable accounts and viewpoints, the information received in the responses to these questions should not be surprising and should fall in line with the client's statements and overall viewpoints in the controversy. If there are any surprises, now is the time to ferret them out and not on the witness stand when cross-examination looms and credibility is crucial in front of the judge or jury. At that point, it is too late.

Address Trial Scheduling Early.

Assuming the witness has favorably answered the basic questions about his beliefs, understandings, and viewpoints, it is also a good idea to make sure he is available and amenable to testifying at trial. It is always a good practice to make sure that witnesses have the date of trial on their calendars as a scheduling item as soon as possible. If the witness is an expert witness and busy professional in high demand in their field, it is imperative that scheduling of trial or deposition dates occur as early as possible to avoid scheduling conflicts.

Also make sure there is no impediment to appearing in court, such as transportation, directions, parking, or the like. For some elderly witnesses or witnesses with special needs, handicapped accommodations may need to be made in advance with the court facility.

Witness Preparation Needs to Get Detailed (Because Cross-ExaminationLikely Will Be).

Next, the discussion with the witness needs to get more detailed and specific. Again, this should happen as soon as practicable. Phone, e-mail, fax, and/or mail can be used for this stage of preparation, if necessary. However, it is ideal to do at least this stage of preparation in person if at all possible. The detailed portion of the witness interview and witness preparations often involves a review of key exhibits, documents, and evidence to be used at trial, in order to anticipate what response and explanation the witness will have. The trial attorney needs to be able to show the witness the key photos, key documents, handwriting, diagrams, and such items and have the witness react to them, recognize them (or not), recall seeing them before, explain what they depict, how they should be interpreted, what they believe to be occurring or to have occurred, and their role and familiarity with the evidence and overall case. It is important to be able to judge demeanor, eye contact, voice, body language, posture, and nonverbal cues during this stage of preparation, if at all possible.

The Best Witness Preparation Occurs in Person at Some Point.

It cannot be said too often: there is no substitute for making that assessment in person early enough to be able to address any weaknesses and make other tactical and strategic decisions in trial preparation, if needed. After all, the trial attorney will be stepping into the role of the judge or jury when examining and critiquing his own direct trial witness. The goal is to access the witness as accurately and objectively as possible, as well as the witness' testimony to ascertain if the content and delivery of that testimony is truly bolstering and favorable to the client's case. If not, due to a forgetful witness, lapse in memory, change in viewpoint, dishonesty, flawed delivery, or for some other reason, it is helpful to see that before the day of trial (or more likely, a deposition, if the case is large enough to warrant that type of discovery). Trial attorneys are very familiar with the adage, "never ask a question to which you do not already know the answer." A corollary to that adage in the area of witness preparation should be, "likewise, never bring a witness to trial with whose testimony you are not already intimately familiar."

The earlier this type of in-depth witness preparation happens, the better. Ideally, from even the beginning stages of the case when discovery requests in the form of interrogatories are received which will likely ask who are the persons with knowledge or witnesses to be called at trial, a trial attorney wants to be able to list only those parties with whom he has spoken first and whose testimony he is aware of and with which he feels comfortable because it is favorable to his client's case. Therefore, the parties listed in discovery responses, ultimately deposed thereafter in depositions, then called as witnesses at trial, and subjected to cross-examination are the best faces of the client's case possible, rather than a wild card or some uncertain factor in the trial preparations.

Never Forget to Ask a Witness If He Has Information or Materials Germane to the Case.

Additional stages of witness preparation involve asking the witness if he has any material evidence or documents about the case in his possession. If so, those items should be examined and evaluated as soon as possible by the trial attorney. They may even prove valuable and advantageous to the trial attorney's case in chief. It is also helpful to ask the witness when he last spoke, if at all, to the adverse party, and if a conversation occurred, what was said in same.

Address the Skeletons in the Closet and Drag Them Out Well Before Cross-Examination.

Further, it is prudent to ask basic background questions of the witness about his credibility and background. Your goal as a trial attorney is to uncover any "dirt" in advance of deposition or trial testimony and the unforgiving, brutal questioning of the cross-examiner. The adversary's trial attorney will be digging deeply on the Net, in the file, with other witnesses, and perhaps even a private detective to exploit this very type of information. The cross-examiner seeks unfavorable nuggets of information to use to discredit the witness and embarrass him on the stand. A prior conviction or firing from a job can provide all the fuel that a skilled cross-examiner needs to unravel hours, if not days, or favorable direct testimony that the adverse trial attorney has methodically and painstakingly built during his case in chief. Therefore, it is imperative that you ask these questions of a witness during the preparation phase. Furthermore, time and resources permitting, it is prudent to do a thorough confirming background investigation of your own. The types of information to be covered with a witness during this line of background questioning include: education, degrees, job, work experience, divorces, past arrests, past crimes, past incarcerations, any offenses involving fraud, forgery, moral turpitude, dishonesty, or characteristics that would call into question the witness' honesty, morality, character, and credibility. A trial attorney must impress upon the witness to be candid and forthcoming at this stage for the sake of preparation and not to be judged or embarrassed. If anything is uncovered in background questions to the witness or in any own follow-up investigation that unearths uncomfortable and awkward information, the time to address it is as soon as possible and well in advance of testimony. Explanations and "credibility repair work" can then be conducted, if needed.

Break the Case Down into Points for Each Witness and Communicate Those Points to Each Witness.

At the beginning and end of preparation with each witness, it is a good idea to reinforce the main themes or points the trial attorney desires to elicit from the witness' trial testimony. The witness should not feel the burden or weight that he "carries" the case and its fate is determined by his testimony alone. Such a burden would set any party up for disaster and incapacitating nervousness. Rather, a witness will likely take comfort in learning that a few key points in a timeline or several chief documents are the entire crux of what the witness' realm of questioning will concern. That breadth and depth of information is more easily digestible and manageable to a witness, who is likely not to be eating, sleeping, and breathing the case like the trial attorney and client. The trial attorney should have a road map developed very early in the case with the themes and main points of trial and how each witness and exhibit fit into that storyline. Accordingly, each witness need only learn his relative pieces of the puzzle for the purpose of his trial or deposition testimony.

Additionally, a witness should realize and be told that he is not the only party testifying and that others will be called in the case for various other themes and points, outside of the realm of information of that particular witness. It is a good idea to tell the various witnesses not to talk to one another during the pendency of the case and especially in the weeks prior to testimony at a deposition or trial, if that can be possibly avoided. If it is unavoidable between family members or colleagues at work, so be it. The lack of contact just adds to the witness' credibility because it will appear as though he is testifying transparently and independently, without any coordination with other witnesses. Therefore, when the other witnesses testify to similar ideas and recurring themes, there is more credibility behind their testimony as well because it is independently given instead of rehearsed as part of a team effort. It is also a good idea to tell the witness not to talk to the client, or any of the parties to the litigation for that matter, if such contact can be avoided during the preparations for trial or deposition.

Explain the Possibility of Sequestering to All Witnesses.

Further, a witness should be warned that he may be sequestered by the judge at trial or by opposing counsel at a deposition. In such an event, he will be limited in what he sees and hears in advance of his testimony and more than likely, will be seated outside the courtroom or taken to a room to wait to testify. This sequestering process prevents a witness from hearing other testimony and being influenced by same or having the opportunity to prepare remarks helpful to a particular side based on what is heard, seen, and observed. Likewise, sequestering prevents a witness from being able to prepare or react in advance to something surprising or particularly adverse. The end result of sequestering is to yield the most credible testimony possible from a witness. As such, it is a prudent practice to instruct witnesses of this possibility well in advance of their testimony so they are not surprised or caught off-guard. Sequestering is also a good tool to consider using for your advantage in trials and depositions and something upon which to insist with other counsel.

Prepare a Witness But Do Not Coach.

Throughout the stages of witness preparation, it is important to keep in mind what can be a fine line distinction between preparation and coaching. It is impermissible and objectionable to coach a witness while on the stand and it should not be done in advance of testimony, as that may be elicited through questioning and discovered by the opposing counsel and party. It is prudent to expose your direct witnesses in a case to the key events, timelines, parties, documents, evidence, and exhibits and to have a clear understanding of the limits of their understanding and memory. A well-prepared trial attorney will have a few main points or ideas to elicit from each witness he calls in his case in chief and then will excuse that witness and sit down so that cross-examination can occur. The less information covered on direct examination, the more narrow the span available to the more vulnerable stage of cross-examination. Over-complicating the case or eliciting tangential details that are not of true significance and import to the case just wastes time and money of the client and also annoys the court with its already clogged docket.

Remind Witnesses to Travel Lightly and Leave Papers at Home.

A witness should be told not to bring notes, files, or materials to deposition or court, unless absolutely imperative to testify due to the complexity of the information or events. In most cases, notes are just a crutch and something that is not needed to refresh recollection or to testify when a witness is asked basic questions. Notes are technically admissible for refreshing a witness' recollection from an evidentiary standpoint, but it is far less credible to have a party reading or studying same during his direct testimony (even if the witness is an expert). Instead, a far more prudent practice involves telling witnesses that notes are fine to review the weekend before testifying or the night or morning prior, but to leave them at home on trial day and not risk having to show them to the other side or have anything spun and turned against the client due to the materials contained therein.

Stress Proper Attire for Court to Witnesses and Clients.

A witness should be reminded, if necessary, of proper attire for court. Some courts are more stringent than others in dress codes. In most cases,business or church attire usually suffices. Attire should not be a reason to have a witness excluded from the courtroom and definitely should not be a reason for a judge or jury to have a negative impression of your case or client. Accordingly, suggestions for wearing white or light solid color dress shirts, dark simple ties, and dark suits for men, or simple dresses or skirt suits for ladies, understated jewelry and make-up, etc., go a long way. No attorney wants a client's or witness' bling to distract jurors or make them decide the party is a deep pocket or already has enough money and does not need any further restitution. In a similar vein, no trial attorney wants a witness' or client's thick theatrical make-up to cause the witness or client to seem insincere or like an actor on stage not taking the tribunal or the event of trial seriously. A disheveled appearance may very well distract jurors and cause them to look at the client or witness askew. Attire and appearance are such easy things to address in advance and quickly remedy.

Take Trial Witnesses Through the Paces of Cross-Examination.

Finally, witnesses should be reminded of what to do on cross-examination. In fact, trial witnesses should be taken through "the paces" of a cross-examination exercise. It is a wise idea to have a colleague (or to do it yourself) question the witness and try to rattle that witness with questions about the weakest areas in his testimony and recollection. The questioning should be detailed and should attempt to go into areas outside of the witness' recollection or knowledge to further rattle that party. The cross-examiner should use a harsh and abrasive demeanor because that might be the very tone used in deposition or trial.

The witness should be instructed to say "I don't know" or "I don't recall" if he does not know the answer to a question he is asked, rather than guessing and speculating. The witness should be instructed to ask for the question to be repeated if the question is long, rambling, multi-faceted, or just plain confusing. The witness should be reminded that each and every word counts. The witness should be instructed to pause and wait for objections to be made and for attorneys to stop conversing about objections in depositions and the Court to rule on objections in trial, before completing testimony. The witness should be instructed not to talk over the opposing attorney or trial counsel, and to wait for the questions to completely end before beginning any answer. The witness needs to be instructed to answer audibly and with verbal responses like "no" and "yes" rather than slang or informal responses such as "uh-huh" or "nuh-uh". Last, but certainly not least, the witness needs to be reminded that if he needs to take a break (especially during depositions which are less formal than court testimony and usually much longer than the time required on a witness stand), that it is perfectly acceptable to ask for a break for the restroom, a drink, a necessary phone call, to feed a parking meter, move a car, arrange for childcare, or the like.

Witness Preparation is Crucial Trial Preparation and May Very Well Win the Case.

With a few relatively short conversations or meetings, a trial attorney can adequately prepare a direct witness for deposition or trial testimony and best position that witness to fare well during even the most brutal cross-examinations. A witness should be familiar with the key events, documents, timelines, parties, and information in the case, so that he is conversant about his understanding and able to clearly and comfortably answer questions and articulate his views to the judge and jury, if applicable. A trial attorney should not rely on the witness to do that level and degree of preparation on his own: the attorney or a member of his trial team should become involved in that preparation process. A skilled and prepared trial lawyer has communicated the several key points to be elicited from a witness' direct testimony to that witness well in advance of any deposition or trial testimony, so that the overall presentation of the case appears seamless and transitions well from witness to witness. So much of what happens in a trial is impromptu and spontaneous, that as much as can be planned and prepared in advance to the client's maximum benefit and advantage certainly should be done.