As your deposition or trial date approaches, you realize that you have only spoken with your key witness on the phone a handful of times. You are not entirely certain what she will say or how she will hold up under questioning, but you have been told that she is a seasoned veteran in the courtroom.
Lacking time or budget to schedule a full in-person witness prep session, you decide that it will suffice to put together a Q&A document and instruct your witness to review it. Then you will discuss it briefly with her before her appearance.
On the day your witness testifies, you are surprised when she appears unsure how to answer questions that go beyond the scope of your Q&A. And her insecure, distrustful demeanor toward opposing counsel makes her appear dishonest, despite giving accurate and truthful answers. You try your best to rehabilitate the witness, but at the end of the day, you know the damage has been done.
When a witness drops the ball like that, it can have a crippling effect on the entire case. But often, attorneys share in the blame by failing to prepare their witnesses to testify in the first place. Here are five ways you can fail at witness prep, too:
1. Ignore ethical boundaries when suggesting better ways to answer.
As with anything else, witness prep has to be done ethically. The first rule of witness prep is to instruct the witness always to tell the truth. On the flip side, everyone knows that coaching a witness to give untruthful answers is unethical and illegal.
But the recent trial of Chicago defense attorneys Beau Brindley and Michael Thompson showed the importance of exercising caution whenever talking with a witness about specific questions and answers. Coaching a witness to give certain answers can be hazardous to your career if those answers turn out to be false. Prosecutors alleged that Brindley and Thompson tampered with witnesses by giving them Q&A papers that provided suggested answers to questions they might face, and that the witnesses gave false testimony based on those answers. Brindley and Thompson recently were acquitted in that case, but don’t miss the important takeaway: overzealous witness prep can lead to trouble that you can avoid by staying farther on this side of the ethical line.
2. Assume the witness knows the best way to answer questions.
Suborning perjury is off the table, but that does not mean the alternative is to abdicate your responsibility to help the witness testify in a helpful way. For example, you can tell him not to use jargon, let him know when he is not clear, or suggest that he may want to use more forceful language. You should warn your witness if his testimony sounds misleading. Show him how to answer questions in a way that is responsive, but does not unnecessarily volunteer additional information.
Remember, none of this comes naturally for most people. A witness often could respond truthfully to a question in multiple ways, some of which may be helpful and some of which may be harmful. Part of your job in prepping the witness is to help him see the difference.
3. Don’t bother getting the whole story from the witness beforehand.
If you do not adequately prepare your witness, you leave yourself vulnerable to damaging surprises. Simply put, you need to know what she will say before her testimony is on the record. That means spending time with the witness. You need to get a clear picture of her recollection of key events. What does she remember from that big meeting?
In most cases, it also means preparing relevant documents in advance and having her review them. Did she work on that memo? What was she thinking when she wrote that email?
4. Fail to anticipate weaknesses.
To be the best advocate for your client, you need to know not only what your witness will say, but how your witness will say it. An uncomfortable witness can be a weak witness. Prepare your witness until he feels comfortable being questioned and can quickly recall information when probed. Subject him to tough questioning to elicit any damaging testimony or draw out potential problems with his demeanor. If need be, have a colleague play “bad cop” to try to get under his skin. Better to have him get red-faced during a prep session than when on camera during the event itself.
Talk your witness through the process and how to handle difficult questions, especially when preparing for a deposition. The broad scope of a deposition means your witness needs to be prepared to handle the stress of the situation more generally. Diligent preparation will make your witness more comfortable, which means you will get better responses to unanticipated questions.
5. Fail to count the cost.
Inadequate preparation might save money in the short run, but ultimately it can cost your client the case. You might think the witness can just wing it for her deposition, but that may be the only time she gets to testify. Most cases don’t go to trial. Your witness’s deposition may be your best or only chance to get in testimony that positions the case for settlement or summary judgment. Don’t waste it.
Find other ways to save costs without sacrificing time with your witness. Instead of traveling to the witness for multiple in-person meetings, consider conducting one or more of those meetings remotely using video conferencing technology. Use eDepoze’s witness prep software to help streamline document prep and share key documents with your witness. Have her review documents online, then use the software to conduct an in-person or remote prep session using electronic documents. Perform these critical witness prep steps, all without the need to spend money on printing and copying paper exhibits, then preparing and shipping binders to her beforehand.