New Jersey Law Journal: 10 Witness Preparation Tips for New Lawyers

The following list of tips is by no means exhaustive. Instead, it is designed to give new lawyers a guide on important considerations when preparing a witness to testify. The following insights apply equally to expert witnesses; however, experts have additional factors to account for, which are not discussed here.

Preparing a witness for testimony is the most difficult task that a lawyer faces because, when the rubber hits the road, the lawyer gives up the most control. By comparison, counsel writes the pleadings, the motions, and the briefs. When taking a deposition, the attorney directs the questioning and the exhibits. At trial, the lawyer controls the opening, the cross-examinations, and the closing. But when witnesses go under oath, the lawyer cedes much control. Of course, a lawyer defending a deposition can object, but the objections are limited. Similarly, a lawyer can object during opposing counsel’s cross-examination, but too many objections can be distracting and send the wrong message to jury.

As a result, preparation is critical. Preparation goes well beyond reviewing the substantive testimony. To be sure, substance is essential. But there are many other considerations: How does the witness communicate? What is the witness’ body language and demeanor? What will the witness wear? In short, an attorney wants the witness to be credible. One credible witness can be worth a dozen other witnesses. If you don’t believe me, check the Third Circuit Model Jury Instructions. They will inform you that it is the quality of the evidence, rather than the quantity, that matters.

1. The witness should be truthful, polite, and accurate.

One of the most common pieces of advice that a lawyer provides a potential witness is to tell the truth. Fair enough. Nonetheless, it is important to highlight that witnesses should be polite—not only to the questioner but also to those people to whom they are referring. If a more strident position is necessary, I let the witness know that it is the role of the attorney.

In addition, the need to be accurate is often overlooked. A witness may not be lying (in the sense that the witness is not being intentionally deceptive) but the witness’ testimony may nevertheless be inaccurate. This is particularly true in the modern age when cases have terabytes of discovery. Emails are a particular concern. Unless a witness has an eidetic memory, it is impossible to recall the contents of communications from years ago. Accuracy, I emphasize, is one of the main reasons for preparation.

2. Responding to questions (non-substantive).

A witness needs to develop a proper cadence when testifying. Testimony is not daily conversation. In daily conversation, we interrupt, speak over each other, engage in casual banter, speculate, assume, and guess. Accordingly, I ask witnesses to do the following: First, listen to the entire question; second, pause briefly before answering; and third, answer. The first rule ensures that the witness does not assume the contents of the question before answering. The brief pause ensures that the witness understands the question. The natural pause also helps a witness when a difficult question is asked because the pause has been worked into all answers. If a witness is getting rolled (that is, rapid fire questions and answers) and then takes a prolonged pause on a tricky question, the pause conveys a lot of information to the trier of fact. Finally there are three ways to answer: (A) The witness understands the question and knows the answer—the witness provides the answer; (B) the witness understands the question but does not know the answer—the witness responds that she does not know (for example, “How many people are there in the United States to the person?”); and (C) the witness does not understand the question—the witness seeks clarification. Finally, the witness must be aware of pacing and timing when answering. Answers should be clear and not rushed.

3. Responding to questions (substantive).

Witnesses should only testify as to personal knowledge. Quick example: My wife calls and says that my daughter is home sick from school. In daily conversation, I am asked about my daughter and respond that she is home sick from school. In testimony, I would say that I do not know if my daughter is home sick and (if appropriate) that my wife said that my daughter is home sick, and I believe it. Of course, hearsay is permitted in depositions, so be sure to lodge the proper objection before the witness answers.

4. Be extremely wary of absolutes.

Always, never, and other similar words are very dangerous when testifying. A witness indicates that she always gets up at 5 a.m. The other side has evidence that, on a few occasions, she did not. The witness has just created an unnecessary issue. It is perfectly fine to answer as to general practices and behavior—so long as the witness is clear that she is not testifying in absolutes. There are times, however, that an absolute answer is necessary. For example, the witness is asked, “Have you ever murdered anyone in cold blood?” That is not the time for the witness to respond, “Not that I can recall” or “Define cold blood.” The answer to that question better be an absolute never—and if it is not, then I (as the attorney) better know about it.

5. Estimates are OK but guesses are not.

A witness should never guess (although the attorney must be careful because some witnesses will answer, “I guess so” when they really aren’t guessing). Witnesses can estimate but must be clear that their response is an estimation. The witness must also be able to estimate accurately. Some people, for example, are very poor at estimating distances or times. Those folks should not estimate on those topics. In addition, if the witness can refer to other evidence to provide a precise answer, the witness should do so. For example, witnesses can estimate how much was in their bank account on a particular day but can add that their bank records would show the exact amount.

6. Documents/electronic evidence.

Preparing a witness for exhibits is critical. First, all “hot docs” must be reviewed with the witness during prep. Second, when a witness is handed an exhibit while testifying, the witness must review the exhibit, particularly when the witness is otherwise familiar with the exhibit. This is because the witness may have focused on one aspect of the exhibit in preparation but opposing counsel is interested in a different area. Third, in a case with voluminous discovery, a witness should be familiar with categories of documents. It may be impossible to review all invoices in a case, but the witness should be familiar with the invoices in general and their contents.

7. Preparation for the tough questions.

Whether in a deposition or on cross-examination, a witness must be thoroughly prepared for the difficult questions. The questions can run from substantive issues to credibility. First, the attorney must be aware of the areas of potential weakness. This means the attorney must be honest with herself and the witness. If the attorney merely engages in “happy talk” with the witness, the attorney is not doing that witness any favors. Second, the witness should undergo rigorous examination in prep, preferably by another attorney to help preserve the relationship between existing counsel and the witness. Third, review and continued practice is necessary when a witness falters. My goal is for the witness, after being examined, to say that the prep sessions were much more difficult.

8. Demeanor and dress.

A witness’ demeanor is not reflected on a transcript, but it can be the difference between winning and losing. One common issue is that the witness is fine on direct—clear, responsive, calm, and convincing—but when cross examination begins, a switch flips. The witness becomes combative, rude, and forgetful. Preparation works to avoid this Jekyll/Hyde dichotomy (see above about being polite and accurate). Another common issue is that the witness is justifiably nervous—but the nervousness is interpreted as a credibility issue. Nervousness needs to be addressed in preparation—and thorough preparation is often a viable cure. Explaining to the witness the proceedings, the role of counsel, and the physical layout of the testimony site can ease a witness’ uncertainty. Similarly, bringing the witness to the courtroom before testifying not only helps familiarize the witness with her surroundings but it provides additional comfort.

As for dress, I recommend that witnesses dress as they would in regular life for an important event—authenticity is the key. A truck driver arriving in a three-piece suit with a handkerchief in his pocket may come off as trying too hard, but nice pants, a collared shirt, and a sweater may provide authenticity. Furthermore, sometimes work dress is most appropriate. (A common example: a police officer testifying about events that happened while on duty.” Also be aware of the accoutrements. An expensive handbag or watch may be inadvisable.

9. Fences.

A good examiner will attempt to put a fence around a witness’ testimony, that is, lock in the witness’ version of events so that the witness cannot later amend her testimony. As a result, questioners will ask, “Is that all you remember?” and “Is there anything else that you can recall?” or something similar. It is perfectly fine for witnesses to respond that is all they can recall at this time.

10. Safety net.

While I began the article noting that an attorney cedes a lot of control when his or her witness testifies, the truth is that the attorney can make all the difference in the success of the witness. In addition to preparing witnesses so that witnesses are comfortable while being examined, the attorney has many additional tools. An attorney can structure a direct examination to be persuasive and compelling. The attorney can ensure that on direct examination, the witness knows exactly where the examination is going and why. The attorney can ask clear, concise questions. The attorney can educate the witness as to the difference between an “I do not remember” answer (for which recollection can be refreshed) and an “I do not know” response. In short, I want a witness to believe that the witness cannot fail because I am the backstop. That is to say, I want a confident and credible witness.

Reprinted with permission from the November 10, 2023 issue of the New Jersey Law Journal. © 2023. ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

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