“I knew [he] was going to be a bad witness by the enormously confident way that he marched into the box, held the Bible up aloft and promised to tell the truth, the whole truth and nothing but the truth. He was that dreadful sort of witness, the one who can’t wait to give evidence, and who has been longing, with unconcealed impatience, for his day in Court. He leant up against the top of the box and surveyed us all with an expression of tolerant disdain, as though we had made a bit of a pig’s breakfast of his case up to that moment, and it was now up to him to put it right.”
—Horace Rumpole, on his overconfident client1
As litigators know, witnesses are not all the same. Every witness has weaknesses and strengths. Witnesses have myriad idiosyncrasies and a variety of anxieties about testifying. They often have mistaken assumptions about what it means to be an effective witness.
Here’s one example from the TV show Taxi. Dispatcher Louie DePalma, played by Danny DeVito, gets a subpoena to testify. One of the drivers says: “Louie, you’re gonna be under oath, you know what that means!” Louie smirks and responds: “Yeah. It means they got to believe me.”2
Some witnesses, like Louie, are overconfident. Others lack confidence. Some, for various psychological reasons, suffer from the Stockholm Syndrome and identify with the other side. Some are too agreeable. Some are too disagreeable. Some are too taciturn. Others are too loquacious. Some use pretentious words—like taciturn and loquacious.
Interested in learning more? Check out ALI CLE’s upcoming webcast, Top 5 Litigation Challenges: Winning Tactics from Prep to Resolution, on October 29, 2024!
Every witness is different in some ways from the last witness and from the next witness. But all witnesses have one thing in common: they need help from their side’s lawyer. From you.
Ahead, I suggest eight topics to start witness-preparation before you get into the case-specific details of the direct examination and the anticipated cross-examination. Then I discuss rules for witnesses and the only six answers that a prepared witness needs.
These topics are aimed at empowering witnesses, at clearing the witness’s path—and yours—to presenting effective testimony. You, of course, will tailor your treatment of these topics and your preparation efforts to each witness, to the pertinent circumstances, to your resources, and to your personality.
EIGHT PRELIMINARY TOPICS
Confidentiality
You will assure the witness that the sensitive content of your discussion won’t later appear on the front page of the New York Times. For clients, you will explain the attorney-client privilege. For nonclients, you will communicate your discretion.
The predecessor to the Model Rules of Professional Conduct distinguished between confidences and secrets. Confidences are privileged. Secrets are subject to the lawyer’s discretion and respect for witness privacy. Explaining these things will help build trust and alleviate witness-anxiety.
Of course, only make privacy commitments you will be able to keep. Sometimes you will have to open the curtain and act on information you get from prospective witnesses.
Sometimes, for example, union lawyers must navigate the different—if not conflicting—obligations owed to the international, the local, unit members, other parties, the court, and others. It is the same for most lawyers who represent institutions or multiple parties. Management lawyers may have to navigate the different—if not conflicting—interests between the CEO, the COO, in-house counsel, the HR director, managers, shareholders, and others.
Join us for our upcoming program, Employee Benefit Plans of Tax-Exempt and Governmental Employers 2024, via live webcast on October 31-November 1, 2024!
Truth
You will explain that the witness’s job is easy: tell the truth. Mark Twain wrote: “When in doubt, tell the truth.”3 Of course, as Oscar Wilde noted: “The truth is rarely pure and never simple.”4
There is the joke about asking how much two and two are. The accountant answers: “Four.” The mathematician answers: “Four.” The lawyer answers: “How much do you want it to be?”
Your assurance that you are looking for the truth will free the witness from wondering whether you expect him or her to—shall we say—stretch the truth. Or worse.
That brings us to the next topic—coaching witnesses.
It’s okay to prepare testimony
You will assure the witness that not only is it okay to be having this preparation-conversation—it is good, ethical, and necessary. I repeat for emphasis: Coaching is good. Coaching is ethical. Coaching is necessary.
Coaching—done well, ethically, and properly—is preparation led by an accomplished lawyer aimed at getting the witness ready to effectively present the truth.
Effective testimony requires collaboration. The lawyer and the witness will make judgments about testimonial-things like: (i) what facts to include as necessary and what facts to exclude as superfluous; (ii) the order of presentation—by topic, by chronology, or by some other organizing principle; (iii) wording, clarity, and emotional tone; (iv) putting the emphasis on the right syllable; (v) the use of aids, like photos, charts, documents, etc.
Every witness needs a good coach. Most need practice answering direct and cross-examination questions. You will explain that you and the witness need to prepare and practice to present the evidence in the best light to—as the song says—accentuate the positive.
The truth is too important to leave to improvisation.
What the case is about
You will tell the witness something like: Our side is saying ABC. To prove our case, we need to provide evidence—witness testimony and documents and other exhibits—to show A, B, and C. The other side says we can’t prove A or C. Their defense is XYZ. We will show they are overlooking 1, 2, and 3. Here is how your important testimony fits in to the big picture…
The depth and detail of your case overview will vary depending on the witness’s role in the big picture. But some level of education about the case is appropriate and almost always necessary.
In addition, educated witnesses may end up educating you—by providing information, ideas, perspectives, and insights that may otherwise escape your attention.
CLICK HERE to read the full article, which was originally published in ALI CLE’s The Practical Lawyer.
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