"You guys were much tougher."
by Daniel I. Small
Those are the words every lawyer should hope to hear from a client they have prepared as a witness, after their actual testimony or interview. Yet too many lawyers—including some very good ones—do not prepare witnesses adequately, because they fail to understand how dramatically different being a witness is from anything else the client has experienced. Testimony is not a conversation. Much of what makes for a good conversation, makes for bad testimony. And what it takes to be a good witness is often contrary to our normal experiences.
When I work with a witness to prepare for a deposition or an investigation, they often express surprise at the length of the process, saying something like: "I was deposed before, and my lawyer just told me to meet him an hour before the deposition and we'd prepare." That's not preparation: that's malpractice. True witness preparation is an extensive—and intensive—multi-step process. It demands a high level of time, energy, and effort from both client and counsel. One of the keys to that process is a realistic "dry run," that is at least as challenging as the real thing, hopefully more so.
Some years ago, I had to help teach my twin girls to ride a bicycle, with all the scrapes and bruises and tears that came with that process. It was traumatic. Try as I might, I could not teach them to ride a bicycle by just talking to them: sooner or later, they had to try it themselves. All I could hope was to be there to help cushion the blow when they fell, and console and teach them when it happened. The same is true for teaching someone to be a better witness.
No amount of discussion can fully explain the question and answer process. Like anything difficult and unnatural, doing it right takes practice. The best approach is to do a dry run, so your client can experience the process firsthand. It doesn't need to be formal or cover all the possible topics, so long as it gives a clear sense of the process. However, the tougher and more realistic it is, the more helpful it will be to the client in the long run. I often have another lawyer in my office ask the questions, both to make it less awkward for everyone in role-playing and to show witnesses how I might act in representing them.
Do a dry run with every witness and you will be amazed at how productive it is. After you've gone through all the background information, reviewed the facts and the “Ten Rules” with them, they can now see it in practice. Ideally, a dry run should be recorded in some fashion, if practical, and if covered by the privilege. This does not need to be any more elaborate or expensive than the case or client allows. Borrow a tape recorder or video camera. Find someone who works at home to type up the tape. It can be that simple.
Adapt the dry run to the proceeding. If you are preparing a witness for a deposition, you may want to have a transcript of the dry run prepared, since the goal of a deposition is to produce a clear and accurate transcript. This will emphasize the strengths and weaknesses of their testimony, allow them to appreciate the final product, and address any weaknesses. Most clients have never seen their spoken words in print. It's a revelation. If you're preparing someone for videotaped or live testimony, the transcript isn't quite as important, but the appearance is: the dry run may be videotaped. The important thing is to record the testimony in whichever way it will help you and your witness.
The witness environment is terribly unfair and deceptive: it has all the appearances of the questioner being in control. If the witness—and counsel—accept that deception, they have lost. This is, after all, the witness' testimony. True witness preparation is all about leveling the playing field, and helping the witness to take control. At the end of the whole process, the words "you guys were much tougher" in the dry run, is a sign of success, and high praise. Make it happen.
Dan Small
This article has been written for
The Professional Education Group by Daniel I. Small.
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