What Preparation Means

• Author: Daniel Small
• Profession: Is a partner in the Boston and Miami of ces of Holland & Knight LLP
• Pages: 49-57

Mistakes of Preparation

Too many lawyers—including some very good ones—do not prepare wit-

nesses adequately because they fail to understand how dramatically different

being a witness is from anything else the client has experienced. Testimony

is not a conversation. Much of what makes for a good conversation makes

for bad testimony. And what it takes to be a good witness is often contrary

to our typical experiences.

As a result, serving as a witness requires an extraordinary level of prepa-

ration. Too many lawyers’ idea of preparation falls short in at least two

key ways:

• It is not comprehensive enough.

• It is not tough enough.

Not Comprehensive Enough

It happens too often: we’ve been working hard to prepare a witness for

hours, or days, and the witness expresses surprise at the length and integrity

of the process. Their prior exposure to witness preparation may have been a

hurried conference, a confusing memo, a short meeting with a junior lawyer

or paralegal, or some other shortcut. However, true witness preparation is

an extensive—and intensive—multistep process. It demands a high level of

time, energy, and effort from both client and counsel.

49

Chapter 12

What Preparation Means

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