Three Mistakes Witnesses Make

• Author: Daniel Small
• Profession: Is a partner in the Boston and Miami of ces of Holland & Knight LLP
• Pages: 35-39

When someone is called to be a witness of any kind, no book or other outsid-

er’s advice can replace the need for effective preparation. This seems obvious

to anyone who has experience dealing with this question-and-answer format.

However, it is not so obvious to many lawyers or laypeople. There are lots of

seemingly good excuses for a potential witness not to bother with prepara-

tion. Let’s consider three of the most common, and how counsel can respond.

1. “I’ll Just Tell My Stor y.”

A party to litigation is convinced he or she knows the case and doesn’t need

outside interference. For someone who is not a party or a target but just an

outside observer, being a witness can be a large and disruptive imposition.

The notion of spending even more time just preparing to be a witness can

seem like an unnecessary burden. Moreover, since the witness knows what

the truth is, why does he or she need someone else’s advice on what to say?

In light of all this, the temptation to just go in and tell your story without

preparation can be great. It can also be an invitation to disaster.

Consider the Questioner’s Advantage s

Both lawyer and client must understand that the main goal of preparation is

to level the playing eld on which the client will be questioned. Otherwise,

it is an extraordinarily unbalanced eld. Think about all the advantages

that most questioners have before they walk in:

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Chapter 10

Three Mistakes Witnesses Make

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