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Litigation 101: Checklists for New Litigators

Trial Witness Preparation

By Robert Don Gifford

Today’s jurors have been exposed to Hollywood versions of what happens within a courtroom. Because of these primetime dramas, jurors are both more demanding and distrustful. Unsurprisingly, surveys have shown that jurors are disappointed by the performance of the participants during a trial. These disappointments have serious consequences – they translate into mixed-up jurors with verdicts contrary to the evidence. Jurors perceive individuals who come into court prepared, who speak authoritatively with the facts with no generalities, and present their testimony without hesitation are more credible and trustworthy. Below are tips to prepare a witness to testify at trial.

  • Be Honest. Lying under oath can not only be bad for your case, but very bad for the witness. Contempt and criminal charges are possibilities for witnesses who commit perjury. Truthfulness and openness is integral to effective communication.
  • Practice is Acceptable. Bring the witness to the courtroom, sit in the witness chair, sit in the juror’s box to appreciate the view of the witness stand, and practice a direct examination or an anticipated cross-examination. Ease a witness’ tensions of going into unfamiliar territory by viewing and experiencing the courtroom. In addition, practicing in the actual courtroom gives you the opportunity to remind the witness to speak up and speak clearly.
  • Dress for Success. A jury trial is not the time to make a fashion statement. It is not a nightclub and it is not the beach. Make sure the witness has proper attire fitting of his role. With the constant barrage of television courtroom dramas in recent history, many jurors have an expectation of how a certain type of witness should appear. If he is a police officer, consider having him appear in uniform. If he is an expert witness from the university, does he or she look like a professor? Shorts, midriff shirts, and halter tops are an obvious blunder – but ensure you are aware of the local court rules of prohibited wear. While “flip-flop” shoes are now common footwear, many courts have historically singled them out as inappropriate. Also consider advising a witness from displaying all of his or her “piercings” and tattoos. While the witness may feel strongly otherwise, explain that the goal is to have the jurors focus on what the witness has to say rather than attempting to decipher a tattoo or be distracted by the glare from the nose rings.
  • Situational Awareness. Instruct your witness that even before taking the stand, that a potential juror may be watching. On the day of trial, it is never a bad idea to tell a witness to drive politely, carry one’s self in a respectful way in manner and choice of words (no foul language), and to be careful of discussing the trial in the hallways of a courthouse. Upon testifying, most witnesses are instructed by the court not to discuss their testimony with other witnesses. This cautionary instruction is also wise to be given to your witnesses prior to trial so that there is no appearance of collusion and a tainting of testimony, thus giving opposing counsel less to work with when the witness is subject to cross-examination.
  • Fuzzy Questions. If the question is unclear or confusing, ensure that the witness understands that he can ask for clarification by having the attorney rephrase the question. A question that is vague or incoherent will only lead to an answer that can be misconstrued.
  • Pause after a Question. By having your witness make a brief pause before answering, it allows you time to object if necessary and time for the witness to fully comprehend and prepare an answer.
  • “I don’t remember.” There is nothing wrong with a witness saying he or she cannot remember. There will be questions for which the witness will need to review through documents or prior statements to “refresh” his or her “recollection.” There will also be those questions in which a witness does not remember and nothing will help to recall. A majority of these questions are harmless and often are merely informational in painting the scene of events as they occurred.
  • Listen and Answer the Question – Do Not Volunteer Information. This is probably best emphasized when asking the witness “Do you have a watch?” When the witness responds with the time as well – stop and remind the witness as to what the question was actually asking: “Do you have a watch?” Extra information volunteered on the witness stand will only provide fertile ground for opposing counsel to go on a “fishing expedition” and keeping the witness on the stand longer.
  • Explain Direct, Cross, & Re-Direct Examinations. One of the greatest fears of a witness is being subjected to cross-examination. Explain the differences between a direct examination and cross-examination, and let the witness know that he or she may be required to give only “yes” or “no” answers to opposing counsel. While this may seem frustrating to the witness, they are often relieved to learn that they will have the opportunity to explain the answer when you give your re-direct examination.
  • Be Wary of Opposing Counsel. A witness should be advised to remain professional and above the fray if opposing counsel is rude, condescending, or confrontational. This may all well be a ploy in the hopes that the witness will participate and return favor.

About the Author

Mr. Gifford is a federal prosecutor in Reno, Nevada. He is a member of ABA’s White Collar Crime Committee, as well as the Young Lawyers Division’s Criminal & Juvenile Justice, Ethics & Professionalism, & Litigation. He has also served as an instructor at the Department of Justice National Advocacy Center, the U.S. Army Judge Advocate General’s School and Learning Center, and the National Judicial College. Mr. Gifford also serves as the Senior Defense Counsel as an Officer in the U.S. Army Reserves JAG Corps with the 22d Legal Support Organization.