Witness preparation is one of the most challenging tasks for an attorney. But effective preparation — whether for a deposition, an investigation, or a trial — is well worth the time spent with the prospective witness.
First and foremost, attorneys must set aside a significant amount of time to prepare for a witness meeting. Attorneys should carefully review the substantive issues involved, create a detailed outline of questions and organize case documents to review with the witness. Witness preparation cannot be approached casually.
Attorneys should also prepare to manage a reluctant or very busy witness. Recognizing that a witness may have many competing time commitments, the attorney must accommodate a witness while also communicating the importance of the legal proceeding. “Sometimes government officials who are witnesses are so busy and are pulled in so many different directions,” says Greg Brooker, an Assistant United States Attorney for the District of Minnesota. “They do not necessarily view being involved in your case as real work and they may not plan to give your case the attention it needs. It’s your job to convince them to focus on their testimony.”
Brooker also cautions that attorneys should listen to their gut feelings about whether an individual will make a good witness. “Sometimes you know right away when someone is going to be bad witness. Maybe the person is too chatty, or conversely, maybe the person withholds details and information,” he said. “In either instance, the witness is going to require much more preparation.”
Some attorneys believe that in preparing for a witness, it is essential to check his or her social media profile and, if feasible and appropriate to the circumstances, even to do a criminal background check. Review of a witness’ “brand” on social media may be a fertile area for cross-examination of your witness. Take the time to complete this step. You don’t want information gleaned by your opponent to surprise you.
Help the Witness Focus
Schedule the preparation meeting at a time that allows the witness to focus well. Joan M. Burke, Executive Director of the Medical Practitioner Review Panel for the New Jersey State Board of Medical Examiners, likes to ask witnesses what time of day works best for scheduling a prep time. “Some people do best in the mornings while others do better in the afternoon,” she said. “Since a witness can be nervous when first starting the process, I usually encourage the preparation to occur when they are at their best, thereby allowing for the session to be more meaningful. The witness will be more eager to participate, retain information, and understand the session.”
The witness should not be diverted by phone calls, emails, or other business demands. It may be useful to hold the session at the witness’s place of employment so that documents that may need to be reviewed are accessible, but the meeting room should be insulated from outside distractions or demands for the witness’s time.
It’s important to schedule two separate preparation sessions. The first session should occur approximately one week or ten days before the deposition or hearing, and the second session should be at least a few days before the actual date of testimony. The second session gives the attorney and the witness the opportunity to take into account any intervening events in the case and to refine the witness’s responses to questions as appropriate.
Ground rules must exist for the sessions. For example, is the preparation session, and what the witness recounts during it, protected by a common law or statutory privilege, such as the attorney-client privilege or a governmental privilege? If you are interviewing the client, or a client representative, the answer may be yes. See Upjohn Company v. United States, 449 U.S. 383, 390 (1981) (explaining that the attorney-client privilege may apply to corporate employees, and is not necessarily limited to a corporation’s officers). But preparing a nonparty witness likely means that no privilege applies, so that anything said during the session is subject to disclosure or discovery. The attorney should explain relevant confidentiality rules to the witness. Relatedly, who will attend the session? It may be a problem to permit individuals other than the attorneys or legal staff to attend the preparation session because their presence may eliminate the privileged nature of the preparation session. What was stated at the session could be fair game for attorneys representing other interests to explore at the deposition or hearing.
At the beginning of the session, you should discuss the overall case with the witness and, if appropriate, describe some of your case strategy. The witness needs to know his or her role in the case and its importance. “Witnesses that are involved in a legal matter deserve your assistance in understanding the context with particularity. The client you represent deserves to have his or her story told through witnesses in a deliberate, prepared manner so the fact-finders have all relevant information as they make their decisions,” says Edward Monahan, former Kentucky Public Advocate.
You also need to explain the nature of the testimonial process. “Try to clear up any misunderstandings or confusion about the witness’s participation,” says Burke. “You should allow the witness to express his or her concerns. Go over each concern thoroughly. Your goal is the make the witness feel more at ease, but also to emphasize to the witness the importance of providing truthful, clear testimony.”
If the witness is going to testify at a deposition, you should explain the purpose, e.g., it is a discovery deposition or it is intended to preserve the testimony of an unavailable witness. You must explain the applicable rules and the setting and context, such as how a deposition in an attorney’s conference room differs from the testimony given before a judge or jury in a courtroom setting. The witness also needs to know what is expected as to appropriate attire and decorum. Many witnesses have never testified before, and even experienced witnesses need reminders about how they must conduct themselves when under oath in a court-related proceeding.
Your primary goal is to learn the witness’ account of the facts and events as the witness recalls them. It may be useful to allow the witness to first give a narrative of the events at issue in the proceeding. A narrative gives the attorney valuable insights into how well the witness will testify. It is an opportunity to observe body language, or word choice in answering questions. After the narrative is completed, you can then ask the witness specific questions about each statement to elicit additional details; ask “who,” “what,” “where,” “when,” and “why” questions.
Of course, you should never coach a witness to recall events as you think they occurred or to ask the witness to create or distort facts. It is the witness’s credibility that the judge or jury will evaluate. You also should emphasize that the witness must testify truthfully. If the witness is concerned about some aspect of the case or anticipated testimony, the preparation session is the opportunity to address that issue. Be aware that some courts have held that attorney consultations with a witness during a break in testimony are not permissible. Compare Hall v. Clifton Precision, 150 F.R.D. 525, 529 (E.D. Pa. 1993) (holding that such consultations are impermissible) with Chesbrough v. Life Care Centers of America, Inc., 31 Mass.L.Rtr. 629, 2014 WL 861200, at **5-9 (Mass. Super. Ct. 2014) (permitting such consultations under specific circumstances).
What documents should the witness review at the preparation session? It may be helpful to share the pleadings or pending motions, and even some of the discovery in the case. It is also important to discuss with the witness any key documents that he or she wrote or reviewed so that you will better understand the witness’s role and how the witness will respond to difficult questions about the documents. The witness may need to explain that a document does not reflect what occurred, or the document must be placed in the context of another document or event. Asking the witness to explain documents is very important, because the explanation may be critical to your client’s position.
It is important to note that if a witness has reviewed a document in preparation for the deposition or hearing, the examining attorney at the deposition or trial may ask if that document was used to refresh the witness’s recollection of an event. The examining attorney then may demand production of the document citing Federal Rule of Evidence 612, which permits the attorney to inspect a document if the document has been used to refresh the witness’s memory for the purpose of testifying and examine the witness about the document. To anticipate that issue, the attorney who prepares the witness will need to research whether showing the examining attorney the document is required or would result in an otherwise applicable privilege associated with the document being waived. See Radiologix, Inc. v. Radiology and Nuclear Medicine, LLC, 2018 WL 4851609, at *3 (D. Kan. Oct. 5, 2018) (discussing applicable decisions). The preparing attorney also should consider carefully whether it is appropriate to describe the testimony of other witnesses, or show deposition transcripts to the witness, because that conduct may leave the attorney open to assertions that the attorney is trying to influence the witness’s testimony.
Be Instructive and Constructive
For any type of testimony, the attorney should give clear guidance on how to answer questions. The typical instructions at deposition preparation include: (1) do not start to answer the question until the question has been asked; (2) pause before answering, to make sure that you understand the question, and to give your attorney the opportunity to state any objection; and use that time to prepare a clear answer to the question; (3) do not volunteer information; (4) do not guess an answer; if you cannot remember an event or conversation, readily acknowledge that lack of recall, rather than guess or speculate; (5) answer the question asked, not a variation of the question, or the question you think should have been asked instead; (6) pay close attention when the attorney may be asking you to provide privileged conversations or information; (7) be calm and patient — do not get into arguments with the questioning attorney. The witness also must remember that he or she is under oath. The hearing is not a casual discussion with counsel or an opportunity for the witness to make a speech. In contrast, when the attorney prepares the witness for trial, the attorney will instruct the witness on how to be effective during direct examination, when the witness takes a pro-active role in describing relevant events.
It is important to have a second attorney or a member of the legal staff in the room for the preparation session. “Even if you don’t have the luxury of being able to bring in an extra attorney, have a paralegal observe and assess how the witness comes across,” says Brooker. “A good paralegal will be able to tell you if the witness talks too quickly or has any verbal or physical mannerisms that could be distracting to the testimony.” Additionally, a paralegal or second attorney can be a witness if allegations of wrongdoing are later made about the preparation session.
No preparation session is complete without at least one mock examination of the witness. Monahan is a firm believer that attorneys should acclimate witnesses to the notion of trial preparation through experiential learning. “We know that experience is an effective way to learn and helps people learn at a higher level than just hearing someone describe what is going to occur. Most witnesses have never been deposed, been the subject of an investigative interview or testified at a hearing or trial,” he explains. “That lack of experience is an opportunity for an attorney to invite the witness to practice direct examination and cross-examination, talk about the experience and learn how to improve communicating information in a digestible, memorable way. No significant testimony should occur without there being a practice-learning experience.”
The lead attorney should be prepared with a detailed outline of questions that he or she will ask at trial. The witness can then practice the testimony. The second attorney should conduct a deposition-style examination or a trial cross-examination, to determine how the witness responds under pressure. While it may be a delicate point, it is appropriate — after due warning — for that attorney to ask hostile or argumentative questions of the witness. “Ask a colleague to do cross with one piece of evidence — that one email or one document, for example, that you think will be problematic,” says Brooker. “Even if your colleague doesn’t know your case, you can very quickly get them up to speed so they can play the part of the obstreperous opposing counsel.” Finally, if your office has the equipment and resources, videotape the preparation sessions so that the witness can see how he or she may appear to the judge or jury at the live hearing.
Attorneys must devote considerable time to prepare a witness for an experience he or she has probably never had and that most likely will cause anxiety. Time spent wisely with a witness will help the finder of fact better understand the issues and make the best decisions in your case.
Ted Hirt is a Professorial Lecturer in Law at George Washington University Law School and is retired from the Civil Division of the U.S. Department of Justice. The views of Mr. Hirt and the contributors to this article are their own.