Introduction

• Author: Daniel Small
• Profession: Is a partner in the Boston and Miami of ces of Holland & Knight LLP
• Pages: 21-23

xxi

In recent years, this country has seen an explosion of government and pri-

vate investigations, litigation, and other inquiries. With this explosion has

come a great increase in the number and variety of people who have been

dragged into these proceedings as witnesses—for either “informal” inter-

views or testimony. The result is that a large number of laypeople who have

never been witnesses, and many lawyers whose practices have not previously

involved witness preparation, have had to venture into this strange new

world. Yet being a witness is often a signicant event for the individuals

involved and for the integrity of our system of justice. It demands careful

attention and preparation by lawyer and client alike.

Recent scandals have shown that being called as a witness can happen to

anyone: A young White House intern becomes the focus of a major crimi-

nal grand jury investigation, while everyone from the maid to her mom to

the president becomes a potential witness. A stockbroker’s assistant brings

down a homemaking diva. Whether the witness is a young student facing

a disciplinary board, a businessperson facing the Securities and Exchange

Commission, a health-care provider facing a jury, or any other ordinary

person in this very extraordinary process, it can be a bizarre and frighten-

ing experience. In an ideal world, any inquiry ought to be an open, shared

search for the truth. In reality, we operate in an adversarial system in which

people get wrapped up in their “side.” As a result, they lose perspective and

“see what they want to see,” and they do not simply ask questions to nd

out the facts.

First and foremost, the job of a witness is to tell the truth. Alas, it sounds

simple, but it is not. The job of a witness is to keep perspective: not on some

cosmic truth, but simply on the truth as they knew it then, and remember

it now. This is neither an easy nor a natural assignment: to do it right takes

hard work. The critical importance of preparation regarding the process of

Introduction

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