What is involved in good preparation? It is an interactive, evolving process from both the lawyer and client’s perspectives, and there are basically seven steps:
Introductions —Imagine sitting down on a park bench and telling a total stranger your most troubling secrets. You wouldn’t feel comfortable doing that, so why should anyone think your new client would feel comfortable doing the same thing just because the other person is a lawyer? Take the time to get to know the witness and get comfortable with each other. The time invested up front to do this is well worth it.
Review the Facts —Encourage your witnesses to go over as much as they know about the likely subject matter of the questioning: who, what, when, why, where, how? What do they remember, and what might someone else remember? Going through it the first time is rarely enough. Go back over the facts in “slow motion” to catch more of the details and issues.
Review the Process —Even more important than the facts is the need to talk about the process of communicating in a question-and-answer format. The facts do not change, but the method of answering questions is something that takes a lot of getting used to.
Put It Together —By reviewing both the facts and the process, you and your witness can then put the two together in anticipation of different questions and approaches.
Anticipate Problems —Now is the time to identify things that may be seen as potential problems and prepare accordingly. One common anticipated problem is nervousness: “How will I be able to think clearly when I’m so nervous?” I give witnesses the same answer I give when I get the same question teaching law students and young lawyers: Don’t be nervous about being nervous. You should be nervous.
Dry Run —No amount of discussion can fully explain the question-and-answer process. Like anything difficult and unnatural, doing it right takes practice.
Review the Transcript —Another great benefit of doing a dry run is to generate and review a transcript or video. Depending on the case and the resources, this can mean anything from a full, videotaped session with a court reporter to a simple tape recording that can be typed up for review. If there are inaccuracies, it can prepare you and your client for the inevitable mistakes in any real transcript.
From Preparing Witnesses: A Practical Guide for Lawyers and Their Clients, 2nd Edition
by The ABA General Practice Solo and Small Firm Division.
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