March 2017 Bar Bulletin
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March 2017 Bar Bulletin

Giving Your Witness a Leg Up
Before Stepping into the Courtroom

By Alexis Knutson
and Laura Dominic


Have you ever walked away from a meeting with a witness thinking, “She’s going to do just fine,” only to be dismayed when the person testifying is not the same person you prepped? Good witness preparation is more than sitting down and talking to the witness about their testimony. But too often, witness preparation is just that — an attorney sitting across the table from a witness telling them about the case and their role in the story, and reviewing key documents.

The trouble is that witnesses are often very nervous about their testimony and insecure about their ability to do a good job. And just talking to them is not enough. While it might appear to make them feel better, they are not actually prepared for the foreign question-
and-answer event that is to come. The only way to ensure that you have an accurate assessment of how a witness will do under pressure and to adequately prepare a witness for “game day” is to simulate the real thing.

Ideally, witness preparation is a two-step process: 1) meet early to assess the communication style of your witness, and 2) meet closer to the actual trial for a “dress rehearsal.” This article provides a few basic steps to put you on the right track in each of these meetings.

Step No. 1: The Early Meeting

The first meeting is your chance to meet with the witness and get a sense of what potential communication pitfalls you may be dealing with. You can learn early if your witness is anxious, too eager to explain every facet of the case, feeling guilty or overly defensive.

The first meeting can be a general discussion geared toward helping the witness overcome some of these problems. This meeting is also your chance to listen to the witness talk about the case in his or her own words. Write these down. These are great themes or “safe harbors” that can be used in your later preparation session.

Make Them Comfortable

The witness needs to feel comfortable before diving into practicing the tough questions. Most witnesses have never testified before — it’s a completely foreign experience where questions aren’t what they seem and answers can be twisted and used against you. It’s not the typical conversation style they’re used to.

They may also feel like the case will be won or lost on their testimony alone. Ninety-nine percent of the time that’s not going to be the case. Allowing them to air their worries and concerns early, and giving them context for how their testimony fits into the overall case, will likely lay those concerns to rest, and will make for a better practice session later.

Start Thinking about Themes

Ask the witness, “At the end of your testimony, what do you want the jury to know or understand about you?” This simple exercise will invite the witness to explore what is most important to them about their testimony.

A nurse in a recent medical malpractice suit said, “That I truly care about my patients, that I always document my chart, and that I am proud of the care I provide.” This helped her frame her own testimony and answers, circling back to those three themes that she knew about herself and wanted the jury to know as well.

It also let her know that even when under attack, she can rely on these safe harbors that make her feel strong, competent and in control.

Help the Witness Feel Good
about Their Role

In a way, these early preparation sessions can be therapeutic for the witness. It gives them a chance to talk about the case without worrying about retaining all the testimony-related information.

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