The Trial Witness

• Author: Daniel Small
• Profession: Is a partner in the Boston and Miami of ces of Holland & Knight LLP
• Pages: 163-168

Each step along the way, including the interview, the deposition, and/or an

appearance before a grand jury, is in large part leading up to a trial. Trials

also take various forms: civil or criminal, before a judge or a judge and

jury, or before an arbitrator, examiner, or other alternative nder of fact.

For these purposes, we will call any proceeding a trial in which both sides

present evidence and question witnesses in front of an independent fact

nder. At a trial, the witness speaks to the fact nder, not just to a questioner.

Trials are dramatic, intense experiences, but not usually in the ways in

which we have been conditioned by TV. There is very little instant grati-

cation; witnesses rarely break down and change their story on the stand or

employ other Perry Mason–type dramatics. Part of the widespread public

confusion about trials comes from picking up sound-bite evaluations from

bits and pieces of the evening news or the newspaper. The result is that

we all tend to score it like a game: who did well, who looked good, or

even who failed to “break.” However, if testifying is a game, it is a game

of slow inches, not sudden victories. Witnesses build or lose credibility

slowly but surely. Because of this, it is extremely important to prepare

the witness and manage his or her expectations. Going to trial is not a

game of miracles; it is a game of inches. It is important that the witness

understand that the judge or jury watches this whole process and puts it

in the context of other evidence.

163

Chapter 28

The Trial Witness

Small_PrepWitness_20140403_13-27 Second Pass.indd 163 8/12/14 10:20 AM