Effective Witness Preparation Strategies
Preparing your witness is one of the most important aspects of pre-trial preparation. A failure to properly prepare your witness could be detrimental to your client’s case whether it be at trial or in a deposition. Most witnesses will have no experience in being a witness and it is your responsibility as the attorney to make sure they are ready and able to assist you in proving your case. In order to get the most out of your witness they must first fully understand their role and the audience and then you must practice, practice, practice!
It can help a witness to understand their role and their audience if you explain these common juror misconceptions:
Anxiety is often misinterpreted as deception among jurors and research shows people are not very good at detecting deceit in strangers. Jurors tend to believe themselves to be a good judge of credibility and stick to their initial perceptions of character or credibility. This means if your witness seems anxious, most jurors will perceive them as deceptive. It is important to talk through witness anxieties and work towards keeping calm while giving their testimony.
Another juror misconception is that significant drama or trauma at the time of an event’s occurrence heightens the witness’s recollection of the situation. Jurors tend to believe dramatic situations will leave an indelible imprint on the mind and therefore, if the witness is recalling an uneventful situation the witness is less likely to accurately remember what happened. This helps the witness understand how to play to the jury in answering questions, they should use detail and speak confidently.
Similarly, jurors also tend to believe that confidence equals accuracy the same way an anxious witness is perceived as lying to the court. The setting can affect this misconception depending on whether the witness is speaking in a conference room versus a courtroom; a witness may be more anxious in a courtroom than a conference room deposition and the change in demeanor is apparent to the jury. Your witness should always speak confidently and this is something you can practice.
You want to begin preparing your witness and practicing their testimony well before the deposition or trial. You must ensure the witness understands his or her role in conveying the story and the theories and themes of the case; you must prepare the witness for their role assisting you in proving your case. In order to do this, you must educate and demystify. Discuss the outline of their time on the witness stand and do a dry run. Give your witness an idea of what it will be like to convey their story versus being asked questions on cross. Discuss the likely outcome of the cross examination and explain the re-direct; make the witness feel better knowing there will be another opportunity to talk to you as the attorney.
In preparing witness testimony, review all documents and consider using demonstrative exhibits. Jurors are more attentive when visuals are introduced. As I discussed before, people retain information better when they both hear and see the information conveyed as opposed to only hearing or only seeing. Use of chart paper or models will ensure the jurors are not only paying attention to what your witness is saying but that they will retain and recall the witness’s information.
You should suggest a courtroom visit with your witness or at the very least, draw a diagram showing where the witness box is in relation to the judge and jurors. Discuss when the witness should turn to the jury to speak, this may come second nature to attorneys but the witness will be unsure of where to look when they answer the questions posed. Give your witness permission to answer “I don’t know” or reply with “I don’t understand the question.” Going over these minor details will make your witness more comfortable on the actual day of their testimony.
Jurors are sensitive to linguistic subtleties and this should be reinforced to your witness. Witnesses who try to outwit, out-smart, out-shine or out-do opposing counsel will perceived by jurors as significantly less convincing, incompetent, unqualified and unintelligent. Your witness should avoid arguing with opposing counsel because jurors will see that as defensive and your witness loses credibility. Witnesses who try to be hypercorrect in their speech come off to jurors as unnatural and fake. Warn your witness against using words like allegedly, residing instead of living or exited instead of left. Over use of intensifiers makes the witness seem dramatic and jurors perceive this as over exaggerations. Witnesses should avoid overusing very, incredibly, absolutely or definitely! When a witness uses phrases like “As I recall” or “I think / I believe” jurors think the person is buying wiggle room and comes off as less credible.; your witness should also avoid over-politeness by excessively using Sir or Ma’am when talking to opposing counsel.
Jurors are also sensitive to witness body language and this is one of the reasons it is highly recommended that you practice with your witness. Learn how your witness speaks and their use of their hands in conveying the story. You will want to coach your witness on how to sit, where to place their hands, facial expressions and posture. Ensure your witness is sitting upright and ask that they fold their hands naturally in their lap. If your witness excessively uses their hands when they speak, practice having them recognize when this happens by having them put their hands back, folded in their lap.
Lastly, and most importantly, you want to express to your witness that they are not there to offer extraneous information or to assist opposing counsel. Your witness should get straight to the point and answer the question asked and offer nothing more. You will want to practice having your witness answer only the question asked using as little words as possible. This ensures you get the most out of your witness without offering help to the opposing side.
If sufficiently prepared, your witness can significantly assist you in proving your case. However, if you fail to prepare your witness prior to their testimony, your case is likely to be in jeopardy. Practicing is the best way to ensure you get the most out of your witness.
How To Earn CLE Credit on this Topic
For additional information on this topic, Attorney Credits offers a course titled “Witness Preparation.”
The course is available for CLE credit in the following states: (AK) | Arizona (AZ) | California (CA) | Connecticut (CT) | District of Columbia (DC) | Florida (FL) | Georgia (GA) | Illinois (IL) | Maryland (MD) | Massachusetts (MA) | Michigan (MI) | Missouri (MO) | New Jersey (NJ) | Pennsylvania (PA) | South Dakota (SD) | Texas (TX) | Washington (WA)