How Should You Prep a Witness?
We've written before about the ethical limitations on preparing witnesses to testify. While these rules tend to be less restrictive in the United States than in other common law countries, one basic rule holds essentially everywhere. You should not be conspiring with your witness to brainstorm convincing lies to tell the court. While nothing in this blog is legal advice, as a practical suggestion for staying out of jail and avoiding inclusion in my ethics CLE titled “How to Get Disbarred,” don't do that.
But if you aren't scheming with your witness to invent confabulated stories, the question becomes, what are you doing in witness prep? What is the goal in preparing a witness to testify at trial and how should you go about achieving it?
1. What is the Goal?
It's a recurring theme in this blog that a lot of mediocre lawyering is the result of firms going through the motions in litigation without stopping to reflect on what they're trying to accomplish. For volume PI/ID shops that may be unavoidable—even economically rational for both the firm and the client. But it's not where we practice and not how we approach things.
Your goal in witness prep is to end up with a witness who better helps you win at trial. Your witnesses will be testifying about disputed facts. They’ll be saying what happened, or frequently in business cases, why something happened. You want the judge or jury to understand, remember, and believe what the witness is saying. And you want the judge or jury to like your side of the case and that usually means liking you and most or all of your witnesses.
So how does a witness go badly for you? If they can't be understood, if they can't be remembered, if they aren't believed, or if they are disliked.
Note also what I am not focused on here. I am not saying that a bad witness is someone who accidentally admits something harmful to your case. We'll talk about prepping witnesses for cross examination, but the name of the game in witness prep is not “remember not to say X or we lose the case.” If something genuinely happened and the witness saw it, the other side is likely to get it out of them. If the fact is troublesome, you should figure out how to fit that fact into your story, not desperately try to coach a witness to avoid it. Prepping in that fashion is a great way to end up with a trainwreck witness who may not have said X specifically but has burned his or her credibility to the ground in the process. Worse they've likely convinced the jury that X is true even if they haven't admitted to it.
2. Making Witnesses More Understandable
In a deposition, if the court reporter doesn't write it down, it may as well not have happened. In a trial, if the jury doesn't understand the testimony, it may as well not have happened. There are a lot of ways to be confusing as a witness, but the three most common and most correctable are speaking too long, speaking too quickly, and speaking in jargon.
What is speaking too long? If a witness answers a question with more than three sentences or speaks for more than 20 to 30 seconds without interruption, they are likely losing members of the jury. People simply cannot absorb large amounts of novel information on unfamiliar topics all at once. This is compounded if they are receiving this information from people very familiar with it and who assume a great deal of background knowledge. The jury can learn facts, even complex facts, but they need to learn them a piece at a time.
Remedying this problem means understanding its cause. Your witness has a lot to say, a lot of details that they think are important to the case. They are trying to stuff that detail into their answers because they do not trust that the information will come out otherwise. Getting them to speak more understandably means telling them to keep their answers short and practicing shorter responses to questions. But more importantly it means demonstrating to them in preparation that you know all of the information that they have and that if they follow your instructions you will get to everything in time.
What about jargon? You could ask a witness not to speak in jargon, but it is the nature of people with specialized skills or knowledge to forget how little normal people know. So be prepared to handle it on the fly. Listen to your witness's answers. If there is any word that a middle schooler wouldn't know, ask the witness what they mean by it. Then use that explanation to reinforce the previous answer. “So, when you said X, that means Y?” Now rather than missing a key fact because of a technical word, the jury has heard it three times in the simplest possible way.
How do you get a witness to speak more slowly? Again, you should tell them to slow down. But even more effectively, speak extremely slowly in your questions to them. Most people match cadence in conversation, at least a little. It's unconscious, people do it without thinking about it. Even if it is normal for a witness to rocket through their words, it will feel uncomfortable to them if your responses are at a turtle’s pace.
3. Making Witnesses More Memorable
It's all well and good if a jury understands your witness. But if they don't remember the testimony during deliberations, what have you accomplished? In a three-day trial this is not a major issue. In a three-month trial, it might be the only issue.
How do you make the jury remember your witness? The same way you remember anything else. Novelty, emotional intensity, and repetition. For novelty, you've got to find something unique about the witness and make sure it gets hammered in their testimony. Your witness is “the guy who X.”
Maybe it's something to do with the case.
“He's the guy who compared all 200 gears to see which were defective.”
Maybe it's a personal background trait that you can joke about.
“He's the guy who collects snails.”
But you've got to have some kind of hook; some way that you can succinctly refer to a witness’s testimony and bring the jury instantly back to it.
Creating drama in testimony is its own whole topic, but suffice it to say, if testimony is important, it should feel important, it should feel serious, and it should be uncomfortable to ignore. And while you can't typically repeat witnesses, you can inject their names into other parts of the case to remind the jury that they exist. This is why the hook is so important. “Oh, so you emailed Dr. Sawyer? The guy who collects snails?”
4. Making Witnesses More Believable
Some people feel compelled to tell the truth on the witness stand. Others do not. You want your witnesses to seem like the first category while also conveying as strongly as possible that the truth is good for you.
Your witnesses have nothing to hide. So, they should look and act like people with nothing to hide. That means looking at the jury and making eye contact as appropriate when answering a question. That means speaking loudly and slowly, like someone who is happy about giving their answers and wants them to be heard. They should not speak quickly and softly like someone who is trying to evade the questions or avoid being heard.
How should your witnesses handle cross examination? If they fight too hard, they can seem like they have something to hide. But if they roll over and fold to whatever the questioner asks, they can seem as though the opposing side’s lawyer has beaten them, forced them to admit to some devastating truths.
The key lies in controlling the emotional resonance of the answers. You need to practice cross examination with your witnesses so that they are comfortable agreeing or disagreeing with any question, no matter how angrily or accusingly it is delivered. Both “Yes” and “No” should feel the same to the witness, so they have no trouble answering the question appropriately. Every answer should project to the jury “this is the correct answer, and it doesn't bother me one bit.”
I like to begin by practicing with absurd questions in preparation to get the witness used to speaking confidently in the face of preposterous aggression.
Are you sure that you're wearing a blue shirt?
Are you telling me that you graduated from college?
Are you telling me that there's no pork in a kosher hot dog?
And how many banks have you robbed?
Are you asking me to believe that your phone number is XXX-XXX?
This is helpful for getting witnesses comfortable in saying either “Yes” or “No” as appropriate no matter what the questioner wants or insinuates. But sometimes this is most helpful when getting witnesses comfortable saying that they “don't know” or “don't remember” the answer to a question. Lots of witnesses feel extremely defensive about saying that they don't remember an e-mail that they wrote. This is despite the fact that no witness genuinely remembers an e-mail sent three years ago.
So, start with questions where nobody could possibly be embarrassed to say, “I don't know” or “I don't remember” and get the witness comfortable saying those words without the slightest bit of embarrassment in the face of whatever someone can throw at them.
What did you write in your mother's birthday card when you were five years old?
Well, you wrote it didn't you?
And it was important to you?
And you signed it?
But your testimony is that you don't even remember what you wrote?
What did you eat for dinner a year ago today?
You're a fully grown adult, aren't you?
With no head injuries?
No diagnosed memory problems?
And you were certainly there when you ate dinner? Nobody else ate it for you?
But sitting here today you have absolutely no idea what you ate?
It's a stupid game, and your witness might even laugh at it. And that's good! The more your witness understands that cross examination is largely a stupid game, the better. You want the witness to understand that there’s no magic to testifying and much of the time it’s not that hard. Confidently answering the questions posed to them as succinctly as they can is the winning strategy. Everything more than that—a stray admission, “yes” that should have been a “no,” even on a key issue—is something that you as an attorney can clean up in redirect.
But that only works if the jury still trusts your witness when redirect rolls around! If your witness seems honest and forthright and not remotely troubled by the answers that they give, the jury is likely to afford you a lot of grace in explaining or correcting testimony in redirect. If your witness comes across as an ashamed scoundrel or a snake that fights being pinned down, it scarcely matters what their answers are. Their testimony is not helping you.
There is always more to say on this topic, and we’re certain to get to it again. But if you take the time to think about what you are actually trying to accomplish in witness prep and how witnesses can go well or poorly at trial, you can more effectively leverage the prep time that you have to deliver better results.
