Testimony

• Author: Leonard Bucklin
• Pages: 427-462

51-1 (Rev. 4, 8/08)

51. Testimony

Famed trial lawyer Edward Bennett

Williams had a succinct way of stating why you

need to spend time with your witnesses to pro-

duce the best direct evidence you can produce.

(In today’s world, that means their testimony

both in their deposition and also at the trial.)

To have any chance at all of pulling a rab-

bit out of a hat in a trial, you have to come

to court armed with fifty rabbits, fifty

hats, and a lot of luck. If the luck is with

you, you may get to use one rabbit and

one hat.

The same applies to the cross-examination of

the adverse witnesses. Don’t rely on luck;

instead, rely on the results of your work in

preparation for that witness.

This chapter will give you tips, tactics, and

tools for preparing your own witnesses to give

good solid, believable testimony and for

preparing yourself for cross-examining the

adverse witnesses.

§51.1 The “Six-Step Prep” of Your

Own Witnesses

The mechanics of witness preparation will

vary from attorney to attorney and from wit-

ness to witness because of a number of factors:

• The available time the attorney has;

• The support personnel (and their time)

available to the attorney;

• The personality of the attorney;

• The personality of the witness;

• The time availability of the witness;

• The witness’s willingness to partici-

pate in self-education;

• The number of days before the testi-

mony;

• The importance of the case and the

time/money budget for it; and

• The importance of the testimony to the

case.

With all those variables, you and your staff

need to have a standard plan as a guide for how

witnesses will be prepared. If you have a stan-

dard plan, you and also your secretary and

legal assistant will know appropriate slots in

your calendar to reserve and ask witnesses to

meet with you, and the order in which items

will be accomplished. When a fact witness is

both friendly and also willing to participate in

self-education, you are starting with an advan-

tage of a cooperative attitude to improve

his/her testimony. But you still need a plan.

Use the Six-Step Prep to make friendly wit-

nesses better witnesses. It is a standard operat-

ing procedure your staff should use to help you

schedule how you work with a friendly, willing

witness (like your client), even if you cannot

always employ all six steps.

If you explain what you want as a standard

operating procedure, your staff can be amaz-

ingly helpful with the process. The following

written explanation will save you time in

explaining to all concerned your ideal prepara-

tion of a witness for a deposition or trial.

The Six-Step Prep involves three office visits

with the witness. Time and budget constraints

may prevent the full work-up, but this is a good

schedule for which to aim. A minor witness

may warrant only the last (“Step 6”) step. For

any witness, you can eliminate the first two

steps and concentrate on the last four steps

(two office visits), but the best results are

obtained if you include all six steps. Your client

(for a corporation, all the major representa-

tives) should have the full six-step prep.

Step 1. Initial interview. The attorney who

will actually work with the witness at the dep-

osition or trial should meet with the witness.

1“Better” because (1) with a computer the viewer controls the rate of advance and instruction, (2) the view-

er easily can move backward or forward to a specific point on which he/she wants to spend time, (3)

viewer decisions to move to the next topic, or reread the page again, enhance the learning process (which

is the reason videotapes have been replaced by computers in modern language instruction), and (4) you

gain the advantage of variety by changing the mode of instruction and the words of the instruction.

2By CaseSoft, available at www.casesoft.com. CaseSoft is a division of DecisionQuest, a provider of trial

consulting services.

The trial attorney needs to learn the witness’s

personality and usual methods of speaking and

responding to questions, as well as the facts the

witness has.

Step 2. Written reinforcement of the sub-

stantive good points. End the initial interview

by reinforcing the favorable major points. Do so

by giving the witness a written copy of the major

favorable points from what he/she has said, in a

form that the witness signs. This then will

become the guidepost that this witness will

return to several times before the time of the

trial. Do not put unfavorable material into this

list of points. The list possibly may get into the

trial evidence as a document used to refresh

memory, and if so, you want the jury to see the

good points and not the bad. Be sure to obtain

the witness’s signature to a statement that this is

what he/she told you. You do not want any sug-

gestion made that this is what you told the wit-

ness to say. Make it clear and acknowledged by

signature that this is what the witness told you.

Step 3. Testimony run-through two weeks

before the testimony date. This second office

visit (in the full six-step prep schedule) is the time

to be sure the witness knows what he can con-

tribute and how to avoid traps in poor use of

words. Get the witness into your office. Schedule

plenty of time and ask your witness to schedule

plenty of time so that neither you nor the witness

will feel hurried. If you want the best result, you

will take three times as long preparing the wit-

ness as the actual time on the witness stand will

take. If you have several witnesses whose testi-

mony is limited to the same point (e.g., neighbors

testifying on the disability of the plaintiff), con-

sider bringing all of them in at the same time for

a group preparation. This group meeting saves

time and builds witness confidence.

This “testimony run-through two weeks

before the testimony date” is going to be your

biggest workout with the witness. There are four

major phases of this testimony run-through:

direct exam, preparation for cross-examination,

mock cross-exam, and reinforcement of testi-

mony points. I have deliberately used the word

“phase” which means a distinct stage of develop-

ment. In this second office visit with the witness,

there are four phases of developing the witness.

Direct exam phase. As you do this major

work-up and testimony run-through, first dis-

cuss and ask questions on the substance of the

direct testimony, so that both you and the wit-

nesses learn the questions you need to ask and

the answers that will present the facts to the jury.

Even if this is only preparation for a deposition,

and you are not planning on asking any ques-

tions yourself at the deposition, run through

with the witness your trial direct testimony out-

line. Ask at least one or two questions on the

major points. If you are going to be using a

checklist of trial outline, question in the style

you will use at trial. Avoid leading questions.

Include the foundation questions for any

exhibits you will be using with this witness.

Preparation for mock cross-examination

phase. Next, tell the witness that you want to

discuss how to handle cross-examination at the

deposition/trial, “so that it will not be any

problem for you.” Explain the principle of the

“Pointers for Witnesses” without giving them

any written materials, so that they pay atten-

tion to what you are saying.

Ideally at this point, tell the witness to take a

break by watching a videotape in your office on

how to testify (the same one as you give them

in Step 5 below) or, better, a computer presen-

tation1such as DepPrep™.2For deposition (as

opposed to trial) preparations, I like Dep-

Prep™ for preparing the witness, because it is

the most comprehensive I have seen that still is

concise on explaining each point, hitting points

you might forget to mention to the witness.

Because it gives more information than you

could reasonably orally convey to the witness,

and because it does not use the same words or

§51.1 BUILDING TRIAL NOTEBOOKS 51-2

format as you do, or that the videotape (Step 5

below) does, your witness is better prepared.

Witnesses who receive instruction in different

words from different persons or sources, but

with the same concepts repeated, are more

likely to have the instruction take hold and

have their behavior changed for the better.

The video or the computer presentation

should not be used to eliminate face-to-face

instruction between you and the witness on

discussing how to testify. Rather, use it to

enhance the time you spend with a witness.

Witnesses who review a videotape or computer

presentation are ready to make the most out of

their instruction with you. A video or electronic

tutorial handles the minutia that you want to

mention to every witness, but you cannot give

a lecture in the office without giving the wit-

ness an overload of talk from you. You do not

like to sit through a three-hour lecture by the

same person. Neither does the witness. By hav-

ing the witness leave you and go to another

room to watch a video or computer presenta-

tion, in effect, you are having a second person

give part of your seminar for the witness. The

witness gets a mental and physical break.

Now, when the witness has finished his/her

break, and returns to you, you only have to

concentrate on major items of “how to testify.”

Ask if he/she has any questions, and then dis-

cuss one to three (no more) of the points that

you think this witness needs to work on.

Remember, you have talked to the witness on

the principle of the “Pointers for Witnesses”

before his/her break, so do not insult his/her

intelligence, or tire him/her prematurely to

prevent development in the cross-exam phase.

Cross-exam phase. Now with the witness

back to see you, with a coffee break or other

time-out intervening, tell the witness you are

going to ask him/her questions just like you

were the adverse attorney cross-examining

him/her. Tell him/her you want him/her to

respond just like he/she were on the witness

stand, but if you want to break and give

him/her advice, you will tell him/her “You are

off the witness stand” and then (and then only)

they can talk to you as his/her attorney.

Ask the witnesses questions in the content and

style you expect the witness will face. If he/she

needs coaching on how to effectively answer, say

“Mr. Smith, you are now off the witness stand,”

then talk to him/her and help him/her. After

that, say “Mr. Smith, you are now back on the wit-

ness stand,” and resume your mock cross-exam

of the major points of his/her testimony.

Pep talk and review of written reinforce-

ment of the substantive good points phase. End

this day’s session by showing enthusiasm for

the witness’s preparation. Most witnesses have

a need for positive reinforcement of their worth

as a witness. Make them feel worthwhile and

valuable, and their cooperation will increase.

Then do a low key and short review of the sub-

stantive good points, using the “Step 2, Written

Reinforcement” document as a checklist.

Step 4. Written instructions. At the end of

this major run-though, give the witness your

written instructions on how to testify (for

example, our “Pointers for Witnesses” form).

Do not give them the written instructions until

51-3 TESTIMONY §51.1

(Rev. 6, 6/10)

Photo courtesy DepPrep. © Casesoft 2005