Prior to deposition or trial testimony, it is common for witnesses to have one or more meetings. These are sessions with their attorneys, and sometimes with others including trial consultants or client representatives. One goal of these sessions is uncertainty reduction: both client and counsel need to know what to expect. Another goal, of course, is to prepare. You want to have some control over your adversary’s discovery, and you want your witness and their testimony to be as effective as possible.
In conducting these meetings, every attorney has their own way of doing things. I have even found that some are a little superstitious about doing the same thing every time and not deviating from that script. It is a good idea to trust your own instincts, and there is no single correct way to prepare a witness. At the same time, there are some best practices that I think should apply in nearly all situations. This post focuses on my own list of six best practices to follow when preparing your witness for deposition or trial testimony.
1. Agree on Goals
The meeting shouldn’t be thought of as a box to check off by either the attorney or the witness. Instead, think about the case strengths and weaknesses, and the personality and communication style of the witness, and then ask, “What are we realistically wanting to get out of the preparation sessions?” Everyone who is involved — the attorney, client, consultant, and claims representative — should agree on these goals.
2. Schedule the Right Number of Sessions
It is never a good idea for an attorney to meet their witness on the day of testimony. So schedule one meeting, for sure. Even if the witness’ role is relatively minor and the risk is low, you will want at least one face-to-face in order to confirm that. For difficult witnesses or difficult cases, then you’ll want more. Three focused meetings can often be ideal: one meeting to assess their communication and recommend fixes, one meeting to apply and teach the techniques, and one final meeting to check in and make sure it has stuck.
3. Have the Witness Do Most of the Talking
I’ve noticed that some attorneys have a fairly stock version of “The Talk” that they like to give to witnesses. It includes all of the “do’s and don’ts” you would expect, along with some anecdotes. It is fine to convey this information in a single download. But remember, like most humans, witnesses will learn best by doing, not by listening to a lecture. So the majority of the time during the witness preparation session should be spent on practice. Give the witness representative questions, let them answer, and then discuss both the style and substance of those answers.
4. Limit Your Feedback
Attorneys and consultants, by training, tend to notice and comment on everything. So when a witness gives an answer, it isn’t unusual for you to think of a half-dozen things that could have been better in the words or the delivery of that answer. But for the witness who is already in an uncomfortable situation, that amount of feedback can be overwhelming. So instead of trying to improve everything, focus on one or two concrete things that can be realistically fixed. Some video review can also help, but you don’t need to review every question and answer: use what helps.
5. Reinforce the Good, Instead of Concentrating on the Bad
You limit your feedback because you ultimately want a witness who feels confident and ready. Confidence is key because jurors, or anyone else observing the testimony, will often treat that confidence as a sign of honesty. All things considered, a confident witness is going to be more effective than a witness who knows their every flaw. For that reason, it is better to reinforce the good answers and the good communication habits more than focusing on bad answers and bad communication. When I am recording a witness using video, I will generally not use it until I also have a good example to share.
6. Empower, Don’t Woodshed
A good witness feels that they can get beyond the “yes or no,” can answer in their own words, and can tell the truth effectively. That means answering based on their own compositional skills, not yours. So while you will need to give feedback on answers, including those answers that could hurt the case, you don’t want to be telling the witness what to say, either in perception or in reality. Beyond the ethical problems (which are serious enough) there is also the practical problem that a witness who thinks she has to remember and give the “right” answer is not going to come across as candid or confident. Ultimately, you will want to practice long enough that your witness understands the goals and the possible traps, and trusts in their own ability to give effective answers.