Original Publication Date February 7, 2018
by Ric Dexter
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.
Still, he was brought in for some trial preparation, 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 might be a little nervous on the stand; that one hadn’t gone 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 the 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 the 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 attorneys, 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. Jurors are given an assignment.
Witnesses walk into unfamiliar surroundings and an uncommon situation. Even if they have been in other courtrooms, few regularly face times when they have to be scrupulously honest and face people with the duty, and the authority, to challenge their every word.
The plaintiff is in front of a group of strangers he must convince of the righteousness of the cause. 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. Nobody taught him what his role was in the courtroom drama. And, perhaps more importantly, nobody taught him what it wasn’t.
He didn’t know what “winning” meant, in the context of his role. He didn’t know about redirect, and how that could help him tell his story. In short, he didn’t know how to do the job that was facing him.
Witness training works in conjunction with witness preparation to avoid or at least lessen the witness’s personal conflicts.
Witness preparation has long been recognized as privileged. When facing a question of whether or not a trial consultant’s participation in a witness preparation session is or is not privileged, the court looks to the American Society of Trial Consultants standards and guidelines. These guidelines and standards are upheld by all ASTC members, and attorneys can be assured that these are the standards by which the trial consultants with whom they work will be judged.
As to the way in which to prepare the witness, that is a matter of individual approach. The introductory sentence of the code tells you a lot about how we approach the task of helping a witness testify in deposition or in court: “Trial consultants recognize witness preparation involves the art and science of interpersonal communication, and therefore our professional approaches will take many different forms.”
As earlier stated, witnesses or parties are in a different “room” than attorneys; for the most part they are strangers in a strange land. Katherine James, owner of The Art of Communication, points out the common mistake of the “magic list.” After being confident the witness knows the answers, there is a list of necessary instructions an attorney may feel they can sprinkle over the witness to get them ready. Usually these are some variation on: “Now, just remember: Listen to the question; don’t answer too quickly; tell the truth; if you don’t know, say so; and, above all, stay calm.”
When the last instruction is forgotten, the rest easily follow.
There is an art, and a science, to good witness training. While consultants will have different approaches, there are some common points that most employ.
Get to Know the Person
Aside from being an element of your case, witnesses are people with lives separate from the trial. Getting to know about them builds trust and can lead you to the best way to help. A witness for the defendant had to give difficult testimony about personal matters, but she couldn’t make eye contact, even on less emotional testimony. She had been raised in Angola, and eye contact with superiors was culturally inappropriate. Finding out that she had been a minister, and asking her to speak as if counseling a congregant, gave her the vehicle and confidence she needed.
Make Sure They Know What Is Going On
The people on the trial team know the processes, and where each piece fits into the overall trial strategy. A party or involved witness may feel their testimony will make or break a case, without realizing they are part of a team telling a story. They need to know how and where their part fits into the story. Explaining the process and possibly even letting them watch part of a trial can make them more comfortable in the environment.
Find Out What Worries Them
A trial team knew they had some bad facts. After asking a witness for the plaintiff what he was trying to avoid, it was discovered that there were more. In a business dispute, the defendant knew of some of the client’s personal indiscretions. Before he could be shown how to react to the bad facts, he had to understand how the attorney was going to keep out the unrelated ones that had him worried.
Let Them See How They Testify
It is often more helpful to let someone see how their actions appear. A young man in a custody dispute tended to smile every time he had to address uncomfortable facts. Telling him not to do it didn’t help, but showing him how he looked smiling and talking about his girlfriend’s abusive treatment of their child did.
Personally, I had an exercise practice session recorded and thought I did pretty well. When I showed it to my kids, after about 5 minutes, they started to say “uhhh” in unison every time I did on the recording. I learned to pause when that urge hit me. Not all consultants record their practice sessions. Discoverability questions need to be addressed.
The Expert Who Is Not an Expert Witness
Sometimes the cards look like they fell just right. Our expert witness knew more about the subject than anybody else — no, really, he did. He was recognized in academia and in the industry. Peer-reviewed articles and books filled pages of his CV.
30 days before trial, the attorney and I sat down with him to go over his testimony. 30 minutes
later, we knew we had a problem. He brought his own graphics, which consisted of scientific
notation and formulae. When he explained in almost unintelligible jargon what he felt was
sufficient, he would say “You understand that — we move on!”
The next month was like a page out of Pygmalion. We worked with him to turn his “graphics” into explanatory images, and told him often, “No, we don’t understand that.” We helped him become a teacher instead of a lecturer.
The Commentary to the Professional Code of the ASTC for Witness Preparation addresses most of the legal issues surrounding witness training. The Standards and Practice guidelines outline many of the associated practical matters. The art and science are best demonstrated by the practitioners of the art.
A witness who has been told what to do — and given a list of what not to do — will be ineffective at best. More likely, they will look like a deer in the headlights as they try to remember that list. Instead, teach your witness how to handle the process, and how to approach the answer to every question that they encounter. These are new skills, unlike anything the witness has ever done in their life outside the courtroom, and they need to be practiced in order to be learned.
While clearly using just a few anecdotal examples, I hope this article demonstrates some of the many things you must look at to help your witnesses be comfortable when joining you in the arena.