Chapter 23 Selection and Preparation of Corporate and Expert Witnesses

• Jurisdiction: New York

CHAPTER TWENTY-THREE SELECTION AND PREPARATION OF CORPORATE AND EXPERT WITNESSES Neil Goldberg, Esq.
Liza Callahan, Esq.

The key to success in litigation is to develop a trial story that allows jurors to feel good about the decisions they make. An aggressive, proactive defense requires early and strategic selection of witnesses, followed by thorough preparation of those witnesses. In the post-Enron and Toyota environment, choosing and correctly preparing the right witness is key to neutralizing juror anger and mistrust toward the corporate defendant

I. SELECTION OF A CORPORATE WITNESS

While it may seem prudent to present the executive “corporate face” as a witness, careful consideration must be given to this approach and the benefits and drawbacks must be weighed ³⁸³⁶

One benefit of using this type of witness is that it may mute damages by personalizing the company and establishing a relationship with the jury. It is harder to punish a person with whom one has a personal connection than it is to punish an unknown entity ³⁸³⁷

However, the defense of a products liability matter requires more than an advertisement for the corporation, as plaintiff’s strategy is often geared toward generating anger and fear toward corporations. Challenging the foundation for such anger with the right corporate witnesses will help the defense maintain a better chance for success. Some drawbacks to using the “corporate face” witness exist, especially if that witness is not the person with the most direct information about the case. First, such a witness may appear defensive, especially if he or she is obviously trying to push the message that “we’re not like them” with respect to other corporations ³⁸³⁸ Second, a corporation may damage its case devoting time and resources to a witness without specific involvement or knowledge of the facts crucial to the case ³⁸³⁹ While a higher-level executive can help provide a context for the overall “story” of the case, the witness with direct knowledge is just as important, if not more important, for the defense. ³⁸⁴⁰ In a national survey of 1,000 jury-eligible people, results indicated that 59% thought the best witness would be the employee most directly involved with the facts at issue; 28% would like to hear from the director of the department involved; and only 10% thought the company president would be the best choice. ³⁸⁴¹

Practically speaking, witnesses also need to have a certain level of stamina. A witness needs to have the attention span to handle direct

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