Preparing Your Witness to Testify at a Virtual Trial

Leave Enough Time to Ensure the Witness Is Prepared for the Entire Experience

The most important controllable determinant of a witness’s performance at a trial is the amount of time the witness and his or her attorney spend preparing. While there is no hard-and-fast rule, the amount of time you spend preparing a witness should be a function of the witness’s role in the case and the anticipated length of his or her testimony. You should err on the side of caution.

To prepare your witness—and ease his or her mind to the greatest extent possible—you must do everything reasonably practicable to ensure that the witness feels prepared for the entire experience of testifying. What does that mean? The witness should, of course, be prepared on the substance of his or her own testimony. But the witness should also understand what the case is about, the parties’ claims and defenses, the parties’ themes, and how the witness’s testimony fits into the broader picture. In addition, the witness should be prepared on the mechanics of testifying and handling documents.

Understand that Preparation Is About Listening Too

In preparing a witness to provide his or her discrete testimony, you should keep the following in mind: You do not know everything the witness knows, and the witness does not know everything you know. To avoid surprises during your witness’s testimony, you must at the outset of your preparation ensure that the witness’s version of the facts matches your understanding of the facts. If it doesn’t—and it’s an unusual witness who has nothing new to say about the underlying events—then you have to integrate the new information into your view of the case. Witness preparation is as much an exercise in listening as it is in speaking.

After you’re confident that you know what the witness knows and the witness understands his or her substantive role in the case, you should work to ensure the witness provides the best version of that testimony. The Restatement (Third) of the Law Governing Lawyers provides that witness preparation may include, among other things, revealing to the witness other testimony or evidence that will be presented and asking the witness to reconsider the witness’s recollection or recounting of events in that light, discussing the applicability of law to the events in issue, reviewing the factual context into which the witness’s observations or opinions will fit, reviewing documents or other physical evidence that may be introduced, and discussing probable lines of cross-examination that the witness should be prepared to meet. Importantly, a “lawyer may suggest [a] choice of words that might be employed to make the witness’s meaning clear.”

Be Aware that Remote Platforms Can Aid Careful, Deliberate Testifying

In addition to working with the witness on the substance of his or her testimony, you must prepare the witness for the strange experience of giving testimony. As Daniel I. Small observed in his excellent guide Preparing Witnesses (ABA 1998), giving testimony is not a conversation. Yet, many inexperienced witnesses will treat testifying as if it were precisely that.

How is testifying different than a conversation? In a conversation, participants treat questions as prompts for a monologue. On the stand, a witness must treat a question as a question to be answered precisely on its own terms. In a conversation, participants avoid awkward silences, struggling to fill the space even if a topic is exhausted. On the stand, a witness should stop speaking as soon as he or she has answered the precise question posed. In a conversation, participants anticipate what their counterpart will say next, frequently interjecting while their counterpart is in mid-thought. On the stand, a witness must listen carefully to what the interrogator is asking and then respond carefully to the question that has been posed.

Fortunately, the limitations of remote platforms help to minimize some of the most dangerous elements of conversation from slipping into a witness’s testimony. As anyone who has used a remote platform knows, simultaneous speaking leads to an unintelligible cacophony. For this reason, participants are reminded at each instance of simultaneous speaking that they should be diligent in waiting to speak until other participants are finished speaking. As a result, use of the platform can help a witness keep in mind that he or she must listen to the entire question before providing an answer.

Practice and Role-Play Using the Same Technology That Will Be Used at Trial

Honing the ability to provide effective testimony, like any skill, takes time and practice. After explaining to your witness all the ways that giving testimony differs from having a conversation, you should role-play with the witness so that he or she has practice in listening to the questions and answering them precisely. If circumstances allow, consider having a colleague perform a mock examination, which will more closely approximate the dynamic of being interrogated by an unfamiliar lawyer.

And just as marathoners observe the admonition “nothing new on race day”—meaning that they do not wear new shoes or eat new foods when they race—lawyers should ensure that when it’s time to testify, the witness is totally familiar with his or her equipment, the trial technology, and his or her environment. You should prepare your witness using the same technology that will be used when your witness testifies. If the testimony will take place on a remote platform, then you should conduct your mock examination on the same remote platform—not by telephone. If documents will be handled electronically using particular software, then you should handle documents during your preparation using the same software.

Pay Attention to the Witness’s Appearance and Limit Potential Distractions

Finally, as part “practicing in game conditions,” you should make sure that the physical space where your witness will testify makes a good impression and does not distract attention from his or her testimony. How do you do this? Your witness should testify in a clean, uncluttered place that is free of extraneous noise and distraction. While some commentators have noted that appearing in front of bookshelves can help create a positive impression, you should consider whether there are any titles on the shelf that would cause distraction or create a bad impression. Finally, the witness should come dressed for the occasion, as if he or she were appearing in the courthouse and not the home office.

Conclusion

Even if you follow all of the steps outlined above, you may not be able to alleviate all of your witness’s stress. But you will increase the likelihood that, when upon leaving the stand, the witness will feel like he or she was up to the challenge of testifying because the preparation was thorough and even more challenging than actually testifying.

Ian Dumain is a litigation partner at Boies Schiller Flexner LLP.

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