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Better Witness Preparation (Part Two)

In a previous post we asked highlighted five common mistakes we've seen attorneys make in preparing witnesses to testify. This is part two in the series, which contains five more mistakes attorneys might be making unwittingly as they prepare their witnesses to testify:

  • Witness preparation is conducted too late. This is a two-part problem that includes waiting until after a witness bombs a deposition before real earnest witness preparation takes place, or waiting until "the eve" of trial to start properly preparing witnesses (or both). There are many reasons this happens, ranging from being very busy, to putting too much faith in untested witnesses, but it must be avoided at all costs. Waiting until it's too late can turn routine depositions into case liabilities, and can make the stress of trial testimony debilitating, causing undue frustration, stress and anxiety for the trial team and witnesses alike – not a good recipe for a favorable settlement or trial outcome.

  • Attorneys seek perfection. Perfect is the enemy of good. Some attorneys place too much emphasis on the perfect answer to each practice question they pose to their witnesses during preparation sessions. This approach manifests itself as constant corrections, adjustments, suggestions, and word-smithing of answers that were actually good enough. The result of hours and hours of this type of feedback is that the witness gets overwhelmed, tries to memorize answers, never quite measures up, quits believing in him or herself and starts to feel demoralized. It's important to remember that jurors don't think like attorneys, judges, experts, or computers; they think like lay people and they are the decision makers. So even if answers to potential questions aren't "perfect," consider the possibility that trying to make them so might do more harm than good.

  • Attorneys assume witnesses understand their guidance if the witnesses say they do. If a witness is told during witness preparation: don't guess, keep your answers short, don't get defensive, stay professional, don't fidget, etc. and the witness says "I understand," don't believe it. Witnesses need to prove they understand how to testify and apply the guidance and training that occurs during witness preparation by demonstrating it (when the time is right). And this demonstration of competence must occur under a rigorous questioning scenario, with no safety nets, "time outs," or "let me try that again."

  • The witness' role is not clearly outlined. Witnesses make major mistakes in how they testify when they attempt to take on a role that is not theirs and is otherwise impossible to accomplish. In reality witnesses (fact) have a very narrow role: testify truthfully and maintain jury-friendly demeanor, tone of voice and body language. Most witnesses don't understand this limited role and attempt to do much more and end up getting themselves into trouble in depositions and on the witness stand. Thus, it's extremely important during witness preparation to teach witnesses what their role is and just as important what their role isn't.

  • Themes aren't developed. It's important for witnesses to understand and help develop the themes of their testimony. That is, the three to five key concepts that need to be communicated to and remembered by the jury once the witness is done testifying. This serves two important purposes: it helps the witness understand how they fit into the overall case narrative and it helps them know where to go if they get into trouble on the witness stand.

For more information on how to improve witness preparation, check out the following posts:


Jeff Dougherty, M.S.

President - Litigation IQ

713 392 8135

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