How do you prepare a witness to testify? Admonish him to tell the truth? Lecture her on the importance of “only answering the question”? Discuss techniques for going slowly and staying calm? None of these are bad advice, but they skirt the critical work of witness prep: helping them figure out how to answer the difficult and consequential questions in the case.
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Making Sure You’re Prepared for Prep Day
If you are a litigator early in your career, this is where you should spend your time — not feeding your witness tactical bromides. If you are a seasoned veteran, it’s always worth making sure prep isn’t becoming routine and that you focused on the substance of your witness’s testimony.
To make sure I’m prepared to prepare my witness, here’s what I do before the prep day. In other words, here’s how I prepare to prepare.
Write Out the Hard Questions
This is the first, the most difficult, and the most important step. After you’ve assembled the materials relevant to your witness (prior testimony, documents they authored and so on) and studied them, take some time to sit and think. Think about what questions this witness could be asked that actually worry you, and the answers that could actually damage your case.
Then write each one of them out. One per page.
This might seem obvious, and even a little silly. I promise it isn’t. The danger in getting ready for a prep is that there is often a lot of material to learn and a lot of subjects that the opposing examiner will cover. The temptation is to study all of that and then methodically plod through it all with the witness. At the end of the day, you both feel good. You feel like you’ve covered a lot, and the witness feels like they’ve had their memory properly refreshed on a broad swath of material.
The problem is that you may have just been searching where the light was good, rather than where the critical risks are. And so, you may have missed the key question that will undermine the witness’s story, contradict a key theme in your case, or hurt your witness’s credibility.
Here’s an illustration:
Imagine you are preparing a witness in an antitrust case alleging price fixing. You have assembled all your witness’s communications with a counterpart at another company, and you go through all of them with the witness. You also have reviewed all the price changes the witness was responsible for and gone over them. In all of this, your witness is confident he never discussed anything inappropriate with the competitor and that all price approvals were done per ordinary process. That may feel like a good day of prep. But if one of those price increases came the day after a one-on-one meeting between the witness and the competitor, and you haven’t spent a good portion of your prep focused on the question “Why did you raise prices less than 12 hours after having drinks with X?”, you’ve missed the forest for the trees.
Writing out the key hard questions is the discipline that will keep you from that error.
But Don’t Write Out the Answers
Once you’ve written out these questions, don’t fill out the answer. In other words, resist the temptation to pre-judge how the witness should actually answer the question. This is for a few reasons.
First, your witness has to tell the truth, and you don’t want to risk putting untrue words in their mouth. In the example above, presumably a part of the answer you want is “we didn’t discuss price.” But what if price was discussed at the meeting? That’s a bad fact, and one you’ll have to deal with, but the worst thing you could do is inadvertently suggest to the witness they should lie about it.
Second, even if the answer you want the witness to give is factually correct, it may not be the best answer or the one that the witness will naturally — and credibly — give. For example, imagine it’s true that price wasn’t discussed in the meeting, and you tell the witness to say that. Sure, that’s not bad. But what if the point that comes naturally to the witness is actually that although the price raise happened the day after the meeting, the decision to raise the price was made and irrevocably fixed a week before the meeting. That’s first of all a better answer, and if it’s the one the witness is inclined to lead with, it will come out more naturally and credibly.
Third, in my experience, it’s just good practice to keep an open mind about what you will learn when preparing a witness. As attorneys, we are used to thinking that our hard work and diligence give us unparalleled mastery of the facts. Generally, that’s a good thing, and we should keep working hard and mastering facts. But no amount of study of the cold record over the months of a case’s life cycle is going to give you the depth of knowledge and experience of the witness who lived the facts or subject matter of the case.
In other words, not writing out the answers in advance will force you to actually talk to and listen to what the witness has to say on the subject.
So what should you write out? The things that will help you discuss possible answers with the witness. Here’s a good list:
- The themes of your case on this topic.
- What the documents show.
- What the witness has said in the past.
- What other witnesses have said.
- What the other side claims.
(Ed. Note: In 2023, the American Bar Association Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 508, providing updated post-pandemic ethics guidance on preparing witnesses since remote depositions and court proceedings have become common.)
Critical Questions: The Witness Prep Outline
At the end of this process, what I have is an outline, typically not very long, of 5 to 10 really critical questions that I want to make sure I go over with the witness. This is then the core of what my prep with the witness will cover. Of course, I will also bring the documents that relate to these questions and possibly other work product (chronologies, topical memos and so forth) that have helped me get prepared. But the list of difficult questions and the materials that relate to them are what will guide me in preparing the witness.
With this article, I’ve includes an example of such an outline pre-formatted to use as you get ready for your next prep session.
Dowload the Sample Witness Prep Outline PDF here.
More Trial Preparation Tips from Sam Davidoff
From Paper to Pixels: How Litigators Can Successfully Adopt Digital Binders
Three Binders Every Litigator Needs
Image © iStockPhoto.com.
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