Witnesses are often the last consideration during trial preparation (immediately before voir dire, that is).
I don’t mean the prep sessions at which a mid-level associate or partner works with the witness before trial to review his deposition or talk about where the other side is likely to go; that happens all the time.
I’m talking about the type of preparation in which the witness knows what to expect emotionally and physically, as well as tactically. The type of preparation that enables a belligerent or nervous witness to testify confidently or calmly, without counsel having to spend time cleaning up any mess.
The most seasoned experts have some trepidation going to trial, even if they won’t admit it. People are not good at recognizing their own blind spots — then they wouldn’t be blind spots — but proper witness prep can get a witness to recognize and remediate those weak areas.
Every witness can benefit from preparation, because every witness is subject to juror scrutiny.
The first step is assessment, which counsel sometimes wants to do after the deposition. That’s a mistake, because the witness is already on record and his impact or distractions have been recorded.
Most attorneys do not take a deposition thinking it will ever be played at trial, but one never knows, so all the distracting behaviors should be dealt with ahead of time.
A recording of a mock deposition will uncover a host of issues no one saw coming. Some of the more common weak spots include looking to counsel after each question, bad posture or seating arrangements, poor lighting, and mannerisms that some take to be indicative of lying.
Be sure the witness comes across as credible and confident on camera. Video exaggerates some attributes while diminishing others, so pre-deposition assessment makes a big difference in deposition, and ultimately, trial performance.
The second step is working with a witness on what I refer to as psychological barriers. These are different for each person; some have many, others have few. But they can be obstacles to a great performance at trial.
For example, some witnesses have no idea what to expect at trial. What is the judge’s disposition? How long will it take? What does it feel like testifying?
Others are insecure (a trait common to expert witnesses), which can manifest on the stand as forgetfulness, inappropriate laughter or, in some cases, obstreperous testimony.
Employee witnesses are often concerned for their job and consequently believe that if they say the wrong thing they’ll be retaliated against, so they feign poor memory or are non-committal to key facts they actually know.
All of the aforementioned issues can be addressed in prep sessions with an expert consultant who has experience in witness preparation. Most consultants (though not all) have worked with many different kinds of witnesses and employed various strategies to work through issues that can prevent poor performance.
The next step is practice. Attorneys often undervalue outside assistance in witness preparation, but practice is key. Obviously, no one wants to spend days with each of the dozens of witnesses in a case, but it pays off, especially with the witnesses who need the most help.
Whereas a witness can be over-coached, no witness can practice too much. Practice on video, play it back, critique, tweak and practice again. Be tough on your witnesses if you have to. Pay attention to substance and style.
Give your witnesses some latitude. Attorneys are often nervous about witness testimony (which makes the “no preparation” problem counterintuitive) because humans are somewhat unpredictable, especially witnesses who are unsure of themselves or their role in the case.
Well-prepared and comfortable witnesses can handle cross-examination. They can maneuver through difficult questioning and leave the jurors with the right overall message.
Witnesses who seem to stick to a script and appear over-coached lack credibility because they refuse to acknowledge even the smallest of discrepancies during cross. It’s like speaking to a customer service representative who is only allowed to answer questions according to the formula book in front of them. It’s maddening and disingenuous.
Seasoned opposing counsel picks up on those witnesses early in questioning and will turn what you thought was a good witness into someone who appears to be lying. By giving your witness some latitude and helping him understand the system and process, he will have the confidence to handle the tough questions naturally.
That goes hand-in-hand with practice: Anticipate the twists and turns and let your witnesses figure out how they can best handle it with help from the experts.
Likeability goes a long way during testimony. Some of the “best” experts in their respective fields are arrogant jerks on the stand and their messages get lost. Jurors are highly critical of those types of witnesses.
Over and over again, jurors complain that an expert was condescending or pompous, and they disregarded what he said. Keeping in line with remembering the human element of being a trial lawyer, the top economic expert or top pathologist should be a person, too.
Jurors are much more forgiving of nervousness or poor recollections or discrepancies if the witness does not “pull rank” so overtly. Arguing with opposing counsel hurts both sides, not just the combative cross-examiner. Being smart, tough and persuasive can be accomplished much more convincingly with a smile and warmth than with smugness and attitude.
Finally, don’t underestimate the emphasis a juror places on a particular witness. I consistently hear attorneys proclaim that a particular witness is “not important” and “will only be on the stand for a short while” and, therefore, needs no preparation.
Jurors focus on what they choose to focus on, and it could very well be the witness you thought was inconsequential.
In fact, sometimes the “important” witnesses are forgotten in favor of a witness who was on the stand a shorter time, as jurors may tune out long, convoluted, complex testimony.
Every witness counts at trial and every witness deserves to be prepared.
Julie Campanini is the founder and principal at Trial Insights. She can be contacted at firstname.lastname@example.org. A version of this column originally appeared in Massachusetts Lawyers Weekly, sister publication to The Daily Record.