Preparing a Fact Witness to take the Stand - ABA YLD 101 Practice Series

By Helen Chae MacLeod

You have completed discovery. You have narrowed the triable issues of the case through summary judgment proceedings. Settlement efforts have yielded no resolution. Trial is within your sight. Who will tell your client's story to the ultimate arbiters of the case? True, documentary evidence and expert witnesses will serve as essential support. But, proof of your client's claims or defenses must come primarily from your fact witnesses.

You may think that you know how your witness will respond on the stand, and that both of you have nothing to worry about because the witness needs only to tell the truth. Consider also that you will likely be squeezed for time, with pretrial preparations such as getting your evidence in order, filing or opposing motions in limine, drafting trial briefs, preparing your opening arguments, and creating your demonstrative exhibits. Amidst all of this pretrial hustle, sometimes witness preparation can be treated as a perfunctory matter.

Most people, however, have never been a trial witness. And, no matter how good the facts, those facts will have no strength for your client's case if they are not clearly and accurately presented by a credible witness.

At trial, you cannot afford to take anything for granted. Equip your witness with the tools to impart the facts precisely, confidently and honestly, and to avoid the inevitable traps that the opposing side will attempt to lay. Here are some tips on how you can achieve that goal:

  • Determine how the witness fits into the big picture. Before preparing a witness, you need to know what role the witness will play in the trial and how you can maximize the witness's testimony. Presumably, you and the trial team understand the elements that you will need to prove. Summarize the witness's anticipated testimony. Prepare an order of proof organizing the evidence, inserting points from your witness's expected testimony in the appropriate slots. Share information and coordinate with your team members about how you will use the witness's testimony. This last point is particularly important in the context of large complex cases, because you will want to avoid any conflicts that might arise from the varied requirements of the case.
  • Compile a witness binder, and make sure to review it. The sources from which counsel can obtain witness examination materials may be plentiful. Gather any previously recorded testimony - for example, the witness's deposition transcripts, affidavits, and declarations. Pull together all of the documentary evidence supporting, or forming the foundation for, the witness's trial testimony. Conduct a "name pull" from the parties' document productions. Do the same from the transcripts of every other witness who has testified in the case. Google the witness and print any relevant results. Collect any public statements, such as interviews, made by the witness. Pull together all testimonial and documentary evidence that conflicts with your witness's anticipated testimony. Compile everything into a witness binder. Review all of the materials thoroughly. Check for inconsistencies in the witness's prior statements and in relation to other case evidence. Ensure that every statement that the witness will make can be corroborated. Identify what will be useful on direct examination, and what could create issues on cross examination.
  • Draft examination outlines, both direct and anticipated cross. Depending on your style, draft either an outline summarizing the points you wish to draw out on direct and cross examination, or a script of the questions and answers that you expect to use. Regardless of the method, drafting examination outlines is necessary. Prior to trial, outlines help you refine your presentation of the evidence by, for example, highlighting the holes in your witness's testimony, and allowing you to lay out the testimony to its greatest effect. During trial, examination outlines will keep you and your witness on track.
  • Meet with the witness as many times as possible. For most people, trial is not a normal event. In all likelihood, the witness is anxious about being questioned. Extend the respect of an in-person meeting to discuss the process and to manage expectations.
  • Explain to the witness why she is being asked to testify. People perform better when they understand the context. Explain how the witness's testimony fits into the overall case, and the particular points that her testimony will help to prove.
  • Help the witness thoroughly review the materials that you have compiled. A long time may have passed since the witness saw particular documents or thought about the matters that are about to be tried. Do not leave the witness to fend for herself. Along with the witness, review the facts, look at the documents, and work through any inconsistencies in the evidence. You will end up with a witness who will testify more confidently and credibly.
  • Practice with the witness, as many times as possible. Practicing gives the witness a concrete preview of the entire process, and provides you a sense of how the witness will perform under pressure. So, you will need to create a realistic environment. Make sure that the attorney who will ask the questions at the trial and the attorney who practices with the witness during the dry-runs is the same person. Have someone else play the role of the opposing counsel. All along, observe the witness's style. Watch for the witness's tendencies to (1) offer more information than was requested, (2) argue or be defensive, (3) adopt the cross-examining attorney's assumptions, and (4) guess or make inferences. Ensure that the witness speaks clearly and that she makes eye contact. Work with the witness on listening carefully to the question, pacing the response, and answering only with facts that the witness knows or are supported by other evidence. Point out that, on cross-examination, the goal of the opposing attorney will be to discredit the witness and to distort the facts. Remind the witness that the testimony is hers to control. Practicing will help to distill and maintain the integrity of the witness's testimony.
  • Describe what will happen at trial. Explain that the witness will take an oath and be questioned by attorneys for both sides. Tell the witness about the people who will be present at the trial, the courtroom layout, and the technology that will be used in conjunction with the examination. You might even visit the courtroom with the witness prior to the proceedings, so that the witness knows what to expect.

Preparation is immensely valuable. By implementing these tips, you can help your witness, in advance, to work through the factors that could obscure or derail her testimony. By the time the witness takes the stand, she (and you) can be confident that the witness will be able to do what she has come to do: convey the facts.


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About the Author

Ms. MacLeod is a Senior Associate with the law firm of Howrey LLP, in Irvine, California. She can be reached at

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