June 01, 2015

Reinventing Witness Preparation

Before we give the standard instructions to another witness, we need to think about how slavishly adhering to them can harm our cases.

Kenneth R. Berman

Surprise! They taught us all wrong. We should be doing it so differently.

We’ve prepared witnesses for deposition and cross-examination so many times, we can do it in our sleep. Listen carefully to the question. Don’t try to answer a question you don’t understand.

We’ve seen it in the training videos. Answer only the question that’s asked, not the question you think they meant to ask. Don’t try to improve on the question.

We’ve heard it at CLEs and learned it in trial practice classes. Above all, don’t volunteer information. If they ask you whether you were at Grand Central Station on Tuesday, the answer is “No”; not “No, I was there on Wednesday.”

We’ve watched colleagues do this drill with innumerable clients in countless witness preparation meetings. If there’s even a single word in the question you don’t understand or if there’s some ambiguity in the question, just say “I don’t understand the question.” Or say “Can you rephrase the question, please?”

We’ve given the familiar warnings. When the other side is asking you questions, that’s not the time to try to win your case. Your job is simply not to lose it. Just answer the question they ask you. If there’s other information you think helps your case but the question doesn’t call for it, resist the impulse to volunteer it. If I think the information is helpful, I’ll get it from you when it’s my turn to ask you questions.

We’ve trained witnesses about what to do when their memories are impaired or deficient. It’s not a sin if you don’t remember something. If that happens, don’t try to come up with an answer anyway. Just say “I don’t recall.” And if you don’t know something, just say “I don’t know.” That’s perfectly OK.

And we’ve cautioned witnesses about the big differences between testimony and conversations. Giving testimony is not like having a conversation. In a conversation, you’re trying to engage the other person and get the person to be more interested in what you have to say. You say things that help the other person ask you more questions because you want the person to be more interested in you. But when you testify and the lawyer on the other side is asking you the questions, it’s just the opposite. Avoid the temptation to turn it into a conversation. Keep your answers as short as possible. Don’t elaborate. Just answer the question and stop.

We litigators have been preparing witnesses like this for so long that no one questions it. It’s the bedrock of witness preparation. It’s gospel. It’s what good litigators do.

But before we give these standard instructions to another witness, we need to think about how slavishly adhering to them can harm our cases and cost us valuable opportunities to win them. And to do that, we need to consider how these instructions probably evolved and what purposes they were meant to serve.

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