Updated: May 12, 2020
What's the biggest mistake attorneys make while preparing their witnesses to testify? The ONE mistake that can make the difference between witness success and witness failure? That’s a trick question because there's a variety of things that can be done, not done, or done incorrectly during witness preparation that will increase a witness' likelihood of failure. You might be reading this and be thinking "this doesn’t apply to me because my witnesses do well." But every attorney has had at least one witness they just couldn't crack the code on and chances are they've had more, so keep reading.
While most attorneys spend a good deal of time getting their witnesses ready to testify, over the years I've noticed that a few important aspects of witness preparation get shortchanged, go underappreciated, or are altogether avoided, resulting in an increased risk and sometimes even a cause of witness failure.
Below are 5 mistakes I've seen attorneys make as they prepare their witnesses to testify:
The emotional component of testifying is not addressed and resolved. One of the biggest barriers to any witness' willingness and ability to participate in effective witness preparation, and in turn testify effectively is emotion. Litigation produces a wide range of emotions in every witness, e.g. frustration, anger, anxiety, vulnerability, resentment (and the list goes on). It's important to note that sometimes the manifest emotion appears to be anger, but that is often a mask for the actual emotion the witness is experiencing. Until any underlying emotional barriers are identified, addressed, and resolved, any witness' ability, or even desire to testify well will be hindered or completely blocked.
The simulation isn't realistic. Many witness preparation sessions contain "practice" Q/A sessions, but they are conducted in an informal way. This is a mistake. While informal Q/A examples can be a helpful starting point, witnesses need to experience the same type of pressure and Q/A scenario they will experience in the deposition or on the witness stand, before they actually testify for real. This requires rigor and realism. When possible it's best to attempt to mimic the style of opposing counsel during these sessions and if practical, have an attorney the witness doesn't know conduct the Q/A.
Witnesses aren't allowed to fail. It's a universal truth that we learn from our mistakes and failures. But, some attorneys get nervous during practice sessions when their witnesses make mistakes, either in the content, or in the delivery (body language/demeanor/tone of voice) of their testimony. All too often the attorney jumps in to "rescue" the witness and "fix" the mistake immediately. This not only raises the witness' anxiety, but it short circuits a powerful learning opportunity, i.e., allowing the witness to make mistakes and learn from them. For example, if during your practice sessions a witness keeps guessing instead of saying "I don't know," or if he doesn't pause long enough before answering questions, or if he keeps providing opinions when asked, he needs to experience how quickly things can spiral out of control. So, rather than "fix" the mistake immediately, continue the Q/A and make the witness experience what will happen in the real setting when he makes these mistakes or refuses to follow your guidance.
Attorneys do too much modeling. Modeling is one of the best ways to teach any new skill; after all, it's how we teach our children. Thus it's an effective way to help witnesses learn how to tell the truth on the witness stand, whether on direct- or cross-examination. But if done too frequently it becomes counterproductive and sends the wrong message to the witness. Some witnesses will infer that they are supposed to memorize certain answers verbatim, other witnesses will feel inadequate because they aren't as eloquent as the attorney and their answers will never "measure up," still other witnesses will feel like their lawyer doesn't trust them. The net affect of too much modeling is an increase in anxiety and frustration for the witness and a hindrance to his or her ability to improve.
Not enough time is devoted to practice. Some attorneys fear that if their witnesses practice too much, they'll appear scripted, thus not enough time is devoted to practice. It's true that jurors don't like testimony that looks scripted, so this is a valid concern. However, it's better to err on the side of too much practice than too little practice. You can fix the scripted-looking nature of testimony with the proper training, but it's very difficult, sometimes impossible to fix surprise errors in the content or delivery of testimony in depositions or on the witness stand. The only way to learn a witness' vulnerabilities is through rigorous and realistic Q/A simulations (at the right time and following the right amount of training). Skimp on this element of witness preparation at your peril.
It goes without saying that every witness is different and should be treated as such. Therefore when considering the ten items above, it's important to take each witness' individual personalities, inherent strengths and weaknesses, and sensibilities into account during each preparation session and to tailor your approach to each witness.
Click here for part two in this series
For more witness preparation advice, check out the following posts:
Jeff Dougherty, M.S.
President - Litigation IQ
713 392 8135