Originally written as HaynesBoone Trial Consultants Digest 2015 #2
You’ve prepared your witnesses. You are sure they are comfortable with all the facts, but have they been trained to walk into a room with which even you are not familiar .
McKenzie was the perfect witness. The associate who interviewed him said so after the first time they talked. He was personable, and he knew everything that had happened at the company. His deposition went well. He was brought in to prepare him for trial, just to make sure everyone knew what he would say on the stand. To be doubly sure, he was sent a list of probable questions, and the answers he’d provided in the interview and in his deposition.
After pleasantries in the conference room he was given the standard list of instructions. McKenzie said he understood all that, they were the same instructions we had given him before his deposition, and he had also heard them the only other time he’d been on the stand, when he testified years before in his divorce hearing. He admitted he may be a little nervous on the stand. That one didn’t go so well for him.
The team spent about an hour going over the direct questions and the ones he was likely to face on cross. He was perfectly comfortable with the answers. He was prepared.
McKenzie took the stand as the first defense witness. In direct examination a perfectly believable story was nervously presented. In cross examination McKenzie chose to do battle with Plaintiff’s counsel. Rehabilitation was difficult and largely ineffective. After court that day McKenzie was angry.
“You didn’t ask the most important questions! He didn’t ask the questions you prepared me for! I had to fight to get out what the jury needed to hear!”
McKenzie is a composite of some actual witnesses. We’ll use his story to look at the difference between the preparation and the training of a witness. Both are necessary, the second is often overlooked.
Preparation deals with external level, the surface aspects of testimony. Can the witness easily recall the events? Do they use the most effective language, and do they understand how using less effective language can hurt them? They heard, but had they internalized the list of instructions?
The second level of preparation is training. That deals with the internal aspects of witness testimony.
In our example the trial team had told McKenzie what he needed to hear, but they had not listened to what he said. They understood their roles and the dynamics of the courtroom. He didn’t.
In court the Judge, the attorney, the witnesses, the plaintiff, and the defendant all appear in the same room. Perhaps more accurately they all appear to be in the same room. The Judge is in familiar surroundings, he is in his office. The attorneys are in their arena.
Witnesses walk into unfamiliar surroundings and an uncommon situation. Even if they have been in other courtrooms, few of us regularly face times when we must be scrupulously honest and face people with the duty, and the authority, to challenge our every word.
The plaintiff is in front of a group of strangers he must convince. The defendant is in front of a group who has control over his fortune if not his livelihood. Witnesses and parties often become aware of this dynamic only when they walk into the courtroom.
The perceptual and cognitive abilities honed in preparation are challenged by conflict. Carefully rehearsed answers can either sound canned or be forgotten. Being confronted with questions outside the preparation can bring forth feelings of loss of control and elicit emotional responses.
In McKenzie’s story the first clue to his potential conflict was when he pointed out to his counsel that the only previous time he had been on the stand was in a proceeding that did not go well. Even though in this case the facts were in his favor, he couldn’t shake the fear that he would ruin this case as well.
McKenzie also felt that since he was the one who knew the entire story, he should put it all in front of the jury.
Witness training works in conjunction with witness preparation to avoid or at least lessen conflicts like these.
Laurie Kuslansky Ph.D. of A2L Consulting recommends some basic steps to support witness training.
1. Establish rapport and trust with the witness. Before you even begin testing them on the fact questions ask questions that show concern for witnesses. Who are they outside the context of the case? What are their family histories and backgrounds? What is their role in family, role in business, role in the case? How has all of this effected their personal and professional lives? What makes them angry or worried or upset? What is the best and worst outcome they could expect? How do they feel about the possible consequences?
What is their prior experience testifying? What, from that experience, still applies? What’s different now? What, if anything, do they regret regarding this case? How, if at all, can it be remedied? What would they have done differently if they knew then what they know now?
2. Empower the witness with knowledge about the case, the process, procedure, case progress, and expectations. Make sure she knows where her testimony fits into the overall trial strategy, what you need from her to tell the client’s story to the jury, and that the rest of the story will be covered by other witnesses.
3. Explore and address internal personal fears by providing concrete coping strategies and helping to reframe issues. It is not necessarily a “bad fact” that undermines a witness; rather, it is how the witness views and reacts to the bad fact that determines his or her credibility and durability as a witness.
4. Maximize contact between the witness and the trial team. This tells the witness that the trial team values his participation. You’ll often find associates and staff can fill this role by building a communication bridge that feels less threatening. This can make witnesses more comfortable about asking questions. This bridge becomes more valuable as trial approaches and other more pressing matters make it difficult to give the witness the attention he may need.