There are three things to keep in mind when preparing a witness… Credibiliy, credibility, credibility. Let’s face it; the most persuasive witness is the witness who is most credible. Such a witness speaks clearly, calmly and plainly, does not exaggerate, does not dodge the question, and is able to look the jury right in the eye as they testified. They do not argue, make flippant remarks or engage in sarcasm. It really makes no difference how smooth your witness is, how nice he looks or whether he is glib, if he is not believable. A con man may have these traits, but that doesn’t mean a juror or jury would trust them. A party or witness needs to resist the temptation to make their testimony better than it really is. As mentioned before, “you don’t want to take a good case, try to make it a great case, and turn it into a bad case.” Here are a few general tips in checklist form for your witnesses:
1. Review any relevant documents, especially statements or depositions.
2. Review any exhibits with the witness and make sure they can authenticate them properly.
3.G o back to the scene of the incident at issue and take in all the details. The witness should try to visualize what occurred.
4. Dress appropriately in business attire or a suit if proper. Do not dress in a flashy manner.
5. The witness should be advised of any exclusion/separation orders or motions in limine which have been granted. Regardless the witness should stay outside of the courtroom until called to testify and should refrain from speaking with other witnesses or strangers who might be a potential juror or witness. Tell the witness they are not allowed to talk with anyone about what has happened in the courtroom.
6. If asked if you spoke to anyone, be honest and say yes. Advise the witness that there is nothing wrong with speaking with you before testifying and if he is asked about it there is nothing to fear. This is part of the preparation process so that the jury’s time is not wasted and evidence can come in an orderly fashion. Emphasize the need to be truthful and accurate and tell the witness if they are asked that this is the primary purpose in meeting with them in advance.
7. Always be a lady or gentlemen no matter how rude the other attorney might be.
8. Conduct yourself in a dignified manner. No chewing gum or tobacco in the courtroom. Be mindful that once on the grounds you never know who might be watching. This includes attorneys, jurors or the judge.
9. Take the stand and clearly accept your oath in a calm fashion.
10. Speak loudly and clearly so that all the jurors can hear your answers and look at them when you answer.
11. Be yourself and speak in terms you are comfortable with, but avoid slang or curse words.
12. Stay factual and avoid exaggerating, guessing or giving opinions where facts will do the job. Stay away from terms such as “I believe” or “I think” as they indicate that you are guessing. These terms create “milk toast” answers of little evidentiary value and are dangerous. If you don’t know the answer or cannot recall then simply say so. Again, don’t guess or speculate.
13. Do not memorize your testimony. Pat answers lack the ring of authenticity and candor.
14. Listen carefully to the question and do not answer a question that you do not understand or which has more than one correct answer.
15. Do not quarrel or argue with the other attorney no matter what.
16. Give a direct answer to a direct question. If it can be answered yes or no, then answer it in that fashion. Do not try and explain the answer if an explanation is not asked for by the other attorney unless an explanation is truly required. Before doing so ask the attorney politely, “May I explain my answer?” If he or the judge says no move on and wait for the next question to be asked.
17. Be careful of absolute terms and questions to “box” you in as a witness. This includes question that use language such as “So that is all that happened?”, “You are sure?”, “So you never did…?”, “You always…?”, etc. It is better to respond ”That is all I can recall,” if you forgot something. The answer, “I don’t know” means it has never been in your brain, while “I don’t recall” means the information sought has been in your consciousness, but you are unable to retrieve the information at the moment.
18. Cover with the witness the foundation for “refreshing recollection” under IRE 612 and “past recollection recorded” under IRE 803(5)
19. Don’t try to sneak in answer. If there is an objection stop immediately until the Court has ruled and you have been either instructed to move ahead or a different question is asked.
20. Don’t play attorney and object to questions yourself. That is the role of the attorneys, not the witness. That being said, you always have the right to understand the question being asked.
21. If you have received a subpoena and witness fee, know that this is perfectly appropriate. If asked, “Are you being paid for your testimony?” answer, “No, I received a witness fee for my time. My honesty is not for sale.”
22. If you are on the stand for an extended period and are tired or need to use the restroom, ask for a break. However, do not speak with anyone during the break. This is inappropriate and could lead to claims or arguments that you were being coached.
23. Most importantly: always testify truthfully and accurately.
“Practice… We talkin ’bout practice.” – Allen Iverson 2002
Just like Allen Iverson of the Philadelphia Sixers, no one likes to practice, but it is necessary if your witness and you are going to stay in sync. In order for your witness examination to be credible and persuasive, both the questioner and the witness must be on the same page. Otherwise, the testimony will come across like two ships passing in the night. The only way to get a smooth and flawless examination is for the questioner and witness to know exactly what is expected by the other. Obviously, the most important witness is usually your own client. Any run-through with your client is privileged as attorney-client communications because you are providing legal advice about how to handle their direct examination. (IRE 501 and I.C.34-1-14-5 and I.C. 34-1-60-4.) I would videotape the client’s testimony and allow them to see it so they can critique their own the delivery of their testimony.
Make sure you give the witness or your client copies of any earlier statements/depositions and, if possible, have them return to the scene of the incident to check it, note landmarks and refresh their recollection. If at all possible, you should try to meet with the witness or client at the scene of the incident so that you can discuss the scene and make sure you’re both talking about the same thing. If this is not possible, an acceptable substitute is to conduct a virtual tour of the scene utilizing Google maps or Google Earth.
Emphasize to the client or witness that accuracy is the most important thing. This requires that they clearly understand the question and avoid any exaggerations or opinions. They should stay factual in their descriptions. When a witness or client slides into opinions, they enter dangerous territory. They are prone to guess, speculate, exaggerate or just plain get it wrong.
My own favorite saying is: “Don’t take a good case, try to make it a great case, and turn it into a bad case.” The first rule I learned when as an insurance defense attorney was to let a plaintiff exaggerate all they want. There is nothing that undermines a claim or gives rise to the all-popular defense mantra of “secondary gain” than needless exaggeration.
The flip side of this is to water down answers with qualifiers such as, “I think,” “I believe,” or, “In my opinion,” when they actually know the facts. Make sure your client or witness avoids using such terminology. It is better to show that you don’t know or recall than to guess or speculate. Also, pay attention to clients who raise the pitch of their voice at the end of sentences. It makes them sound tentative or like they are checking with you on whether their answer is correct. You should only raise the pitch of your voice at the end of a sentence when you are asking a question.
Once again, the primary rule is to answer truthfully and accurately.
The more significant a witness is to your case, the more important it often is to let the jury know exactly who they are. Usually, your client is one of the most important witnesses the jury will hear from during the course of trial. When dealing with such witnesses, I will generally cover age, where they live, personal background such as where they grew up, their family, their education and work experience, and any special qualifications which might bear on their credibility or believability as a witness. Such matters are typical covered at the beginning of the witness’s testimony. It’s difficult for someone on the jury to trust the person’s testimony; they may feel like they don’t really know them.
Keep in mind how you relate to people you meet. You typically look for connections and things you have in common. Don’t forget who your audience is. Is there information in your witness’s background that might establish such a connection with one or all the jurors? What in your witness’s background enhances their credibility? What would you want to know about your witness if you were a juror? Is there something in your witness’s background that might create empathy or understanding for any weakness they may have in communicating? Try to approach each witness with a fresh set of eyes.
Everyone admires someone who overcomes adversity or is hard-working. If there are things in your witness’s background which you can weave into your examination, make the jury went to cheer or root for them, then find a way to present such testimony subtly. A bit goes a long way so don’t beat the jury over the head with it.
When it comes to persons being called for minor matters such as establishing the foundational prerequisites for the admission of documents or other tangible evidence, it may not be as important or necessary to cover matters outside of the witness’s education, training, experience and job duties relevant to their position as a custodian of the document or item of evidence.
Has your client or witness, assuming it is a more significant witness, had involvement in civic or charitable matters? Have they held public office or been an officer in an organization which is positively viewed by the public at large? These sorts of connections help a juror bond with a witness or client. They are part of who the witness is. Everyone admires those who give back. It helps to show that the witness or client is part of the solution, not the problem. As noted earlier a bit of such testimony goes a long way so don’t overdo it.
It costs you nothing to be a gentleman or lady. However, a lack of civility can be very costly. The manner in which a witness or party testifies is critical to their credibility and understandability to the jury. You want witnesses to testify in a natural manner, but they need to be understood and well received. If you have a witness who talks a mile a minute, then the best way to persuade them that they need to speak in a slower and more measured tone is to allow them to see exactly how they testify.
I will typically meet with a witness or a client and, through the magic of a cell phone or iPad, record the testimony and then allow them to view it. I then asked the witness or client to tell me what they see and how they would improve such a witness’s testimony if they were in my position. Most people will be a harder critic of themselves than you could ever be. After we discuss problems with their testimony and their manner of delivery, I covered the same line of questioning again and let them watch the new video.
The only thing a client or witness has absolute control over is their behavior and demeanor. By emphasizing this point, you can both empower them and relax them. No matter how rude or aggressive the other attorney is, it’s important for them to remain calm and composed. When an opposing attorney senses he has drawn blood, he will simply bore in with more of the same. A client or witness can tactically overcome this by simply remaining calm and truthful no matter how bad the answer seems to hurt.
Likewise, the client or witness needs to be cautioned to avoid any sarcasm, insincere or solicitous comments. Remember, this is their chance to make a good impression and show they will be a likeable and empathetic witness to the jury. It’s not their job is not to exchange verbal jabs with the other attorney. There is an old saying, “If you wrestle with a pig, you’re bound to get dirty.” Don’t let your client or witness get dirty with the other attorney. Ultimately, they will lose
Buddy Yosha, the Melvin Belli of The Midwest, meticulously outlines his examination and writes out every question and expected answer. He also uses marginal notes to signal general topics of the examination such as background, anatomy, treatment opinions, permanency, future medical expenses and treatment, etc. You get the idea. This system works well for him. Some of the other attorneys in our office have adopted it and have been successful in outlining testimony in this fashion. However, such as system has its drawbacks.
First the outline is very long. I have seen some outlines that have gone well over a 100 pages which can be cumbersome. It is basically a deposition transcript of what you hope to present. When it comes down to studying it, you are lucky to get through it two or three times in a single sitting. It can also lead to the testimony coming across scripted and stiff.
It does the have the advantage of allowing you to fully visualize the expected testimony. If you are pressed for time it can also provide a clear blueprint for the witness’s testimony which would allow a young associate or paralegal to work with the witness and know what to expect as far as the question and answer.
There is an alternative method that I use. I outline the facts I hope to obtain from the witness, in the order I hope to obtain them from the witness. I will write at the top of my outline the legal elements of the claim I expect to cover with the witness (breach of duty, proximate cause, damages, etc.) and list any exhibits by number and description , I hope to cover with the witness. I make the question up as I go. The testimony comes across spontaneous and more conversational.
From my perspective this type of outline can be reviewed multiple times because it is substantially shorter than one which has both the questions and answers. It places the emphasis on your goal, the expected answer, not the question. This forces you to listen to the witness, instead of moving on to your next question. You make up each question as you go which helps you develop the skill of forming questions on the fly. If an objection is sustained, no worry, you simply rephrase the question. It’s second nature to you.
This method forces you to develop the skill of thinking on your feet and adapting rapidly to your opponent’s objections and the Court’s rulings. Most of the time if you rephrase the question, the Court will allow you to move forward. With a scripted witness outline, I have seen attorneys freeze in their tracks when an objection is sustained because they are locked into their script and do not have the requisite skills to rephrase their question quickly. It makes them look like they are struggling and have been hurt by the legal objection. This second method of outlining a list of facts, also keeps you focused on the goal… the witness’s answer.
The only exception to this rule is when you are asking a question which requires information to be loaded into it such as for an expert witness such as a hypothetical question or when words of legal art must be included in the question, such as “Based upon a reasonable degree of medical certainty, what caused Mr. Roger’s numbness in his left arm?”
Hypothetical questions, as noted above, should be written out in advance so that no key facts are omitted. Otherwise your question could be objected to as an incomplete hypothetical or one that either misstates the record.
There is more than one way to outline your examination. Choose the method which works best for you. Both approaches have their advantages and drawbacks. Good luck!
Helping your client refresh their memory regarding facts pertinent to the case is just the beginning of your job in preparing your client to testify at their deposition. You also need prepare your client for problem areas of questioning.
. Compound Questions
Compound questions are questions, which incorporate two questions in one. They are very deceptive and dangerous because a yes or no answer can be interpreted as an affirmative response to the underlying predicate. For example, “Do you beat your wife only on Tuesdays and Thursdays?” is actually two questions in one. The first question is, “Do you beat your wife?” and if yes, is it only on Tuesdays and Thursdays?
. Summary Questions
Another classic approach to the compound question is to summarize a client’s prior testimony, and then ask at the tail end a yes or no question. Clients often focus only on the yes or no question, and forget that by answering the question without objection or clarification they are affirming the entire scenario outlined in the question. While you, as an attorney, should object to such questions, it is important to educate the client on these problems as well, in case you fall asleep at the switch.
. Questions in Absolute Terms
Questions cast in absolute terms can also be a problem. Whenever an attorney uses such terms as, “Do you always” or, “Have you never,” they are attempting to lock your client in absolute terms. There is nothing wrong with being absolutely sure, you just want to make sure that that is, in fact, the case. If there are exceptions, then the client needs to avoid answering such questions in the affirmative. On the other hand, defense attorneys will use such absolute terms as a means of unnerving a client and backing them off of their testimony. The point is, make sure if you answer in absolute terms, that you’re absolutely correct.
. Milk-Toast Answers
The flip side of this is to water down answers with qualifiers such as, “I think,” “I believe,” or, “In my opinion,” when you actually know the facts. Make sure your client avoids using such terminology. It is better to indicate that you don’t know or recall than to guess or speculate. Once again, the primary rule is to answer truthfully and accurately.
Do not exaggerate: Don’t take a good case, try to make it a great case, and turn it into a bad case. The first rule I learned when I began doing defense work from the senior partner at the firm I was at was to let a Plaintiff exaggerate all they want. There is nothing that more quickly undermines a claim or gives rise to the all-popular defense mantra of “secondary gain” than needless exaggeration. This is why reviewing a client’s medical records with the client in advance is imperative.
Be careful of giving opinions, as they are the doorway to guess and speculation on the part of a client. If a client starts to guess and speculate, the next thing you know, they are giving inconsistent answers or violating the rules of physics. As Sgt. Friday in Dragnet said, “Just the facts, ma’am, just the facts.” This should be your mantra to your client as well. Stay factual! Do not guess, and do not speculate. You do not have to have an answer to every question. Remember you are a “human being, not a computer.”
. “Would It Be Fair to Say…”
Usually when an attorney begins a question with, “would it be fair,” it is absolutely unfair to your client. Anytime a client hears a question prefaced with such a line, they should make sure they in fact agree with the proposition set forth in the question.
. Narrative Questions
Defense attorneys will often ask, “Tell me everything that’s still a problem.” The difficulty with this question is that a client can forget important details of their injuries or losses when asked to simply list everything under the sun without any other prompting. While you can object to the form of the question on the grounds that it calls for a narrative, your client ultimately will probably have to answer it. It is important to review in advance all areas of losses and damages with the client to ensure that that do not forget anything. Your client should be prepared to answer at the end of their list that that’s all they can recall at the moment. This allows you to clean the topic up on cross, or later through the signature process where your client is allowed to review their deposition before it is sealed.
. “How Much Is Your Case Worth?”
This is a question that I have used with Plaintiffs, and oftentimes catches them totally off guard. Ultimately, I think the best response is to say that I’m not an expert in evaluating these sort of things, and am trusting my attorney’s best judgment, as well as that of the jury. To actually provide a dollar amount can make your client appear greedy, and be used to prove motive for secondary gain.
. Other Trick Questions
Another classic question to unnerve a witness or a client that attorneys will often use is, “Have you talked too anybody about this case?” Sometimes, a client will think that they’ve done something wrong by discussing their testimony in advance. The client should be put at ease that there is nothing wrong with preparing for their deposition or meeting with you in advance. In fact, most jurors expect attorneys to meet with their clients, as well as witnesses, in order to properly prepare for trial. Obviously, your client has talked to you, and such information is privileged. If the question is posed by opposing counsel and you fall asleep at the switch, you want to make sure that your client seeks a clarification as to whether the attorney is, “Asking for information discussed with counsel.” If your client has discussed the case with other persons, you want to identify this well in advance of the deposition, so that you don’t have to deal with needless prior inconsistent statements.