Effective Witness Preparation

Be Prepared

Set aside a significant amount of time to prepare for a witness meeting. Carefully review the substantive issues involved, create a detailed outline of questions and organize case documents to review with the witness. Government witnesses do not necessarily view being involved in your case as real work and they may not give your case the attention it needs.  It’s your job to convince them to focus on their testimony. Also check a witness’ social media profile and, if feasible and appropriate, do a criminal background check.  Review of a witness’ “brand” on social media may be a fertile area for cross-examination of your witness. 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, asking what time of day works best. 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 such as phone calls/emails or other business demands. 

Be Thorough

Consider scheduling 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, to take into account any intervening events and to refine the witness’s responses. Also, discuss the overall case with the witness and, if appropriate, some of your case strategy. The witness needs to know his or her role in the case and its importance.

Be Inquisitive

Your primary goal is to learn the witness’ account of the facts and events as the witness recalls them. Allow the witness to first give a narrative of the events This will give you an idea about how well the witness will testify. Also observe body language or word choice in answering questions. After the narrative is completed, ask the witness specific questions about each statement to elicit additional details; ask “who,” “what,” “where,” “when,” and “why” questions. 

Be Instructive and Constructive 

For any type of testimony, the attorney should give clear guidance on how to answer questions. Have a paralegal observe and assess if the witness talks too quickly or has any verbal or physical mannerisms that could be distracting. And make sure to do at least one mock examination of the witness, preferably with you conducting direct examination and a colleague doing cross.