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.
Help the Witness Focus
Schedule the preparation meeting at a time that allows the witness to focus well. Ask 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. Additionally, the witness should not be diverted by phone calls, emails, or other business demands.
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.
Determine first if the preparation session is protected by attorney-client privilege or a governmental privilege. Be aware that if you are preparing a nonparty witness, that 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.
At the beginning of the session, 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. Try to clear up any misunderstandings or confusion about the witness’s participation.
Your primary goal is to learn the witness’s account of the facts and events as the witness recalls them. Allow the witness first to give a narrative of the events at issue in the proceeding. A narrative provides the attorney with valuable insights into how well the witness will testify. Observe body language or word choice in answering questions. After the narrative is completed, ask the witness specific questions using “who,” “what,” “where,” “when,” and “why” questions.
It may be helpful to share the pleadings or pending motions and some of the discovery in the case. It is also essential 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.
Be Instructive and Constructive
Give clear guidance on how to answer questions. Typical instructions at deposition preparation include:
- do not start to answer the question until the question has been asked;
- pause before answering, to make sure that you understand the question, and to allow your attorney to state any objection; and use that time to prepare a clear answer to the question;
- do not volunteer information;
- do not guess an answer; if you cannot remember an event or conversation, readily acknowledge that lack of recall, rather than guess or speculate;
- answer the question asked, not a variation of the question, or the question you think should have been asked instead;
- pay close attention when the attorney may be asking you to provide privileged conversations or information;
- be calm and patient—do not get into arguments with the questioning attorney.
No preparation session is complete without at least one mock examination of the witness. 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. A second attorney should conduct a deposition-style examination or a trial cross-examination to determine how the witness responds under pressure.
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.