There is a 2500 year old story about a young counsellor who was trying to help a couple of guys find a path to greater wisdom. One was a blacksmith, the other was a tailor. The young man told the blacksmith to concentrate on how all things are connected, and he told the tailor to concentrate on rhythmic breathing. Checking back a few weeks later he found that neither had made any progress. His teacher explained that he had taught each of them the wrong approach. The blacksmith could best learn by focusing on the rhythm of life and the tailor could understand how one thing was connected to the other.

It is hardly a new thought. Everyone learns differently. You need to understand how your witness learns to help them become a better witness. Katherine James, owner of the trial consulting group Act of Communication, explains that witnesses fall generally into four categories of learners; emotional, factual, practical, and creative learners.

Setting the Stage

An exercise that helps you understand how they will best learn, and begins both the preparation and training, starts with a simple question. “Do you have any questions or concerns or thoughts or even fears about testifying in this case?”

You’ll notice that we didn’t start with “the list”. That is, the list of things you will always want to tell your witnesses. You know the list. “Always tell the truth. Listen to the question. If you don’t know say you don’t know. Don’t chew gum. Speak clearly. Don’t volunteer information…” It goes on and on and is all information your witness needs, but is hard to internalize while he are trying to remember all the facts, and his mind is full of his own questions.

The way that question is answered can tell you what kind of learner you have, and guide you in their training.

Answers that demonstrate some sort of trepidation indicate that you have an emotional learner. “I’m afraid the lawyer will trip me up with trick questions.” “What if I don’t get everything right? I’ll tank the case.” “I can’t always remember everything.” These kinds of answers show that you’ll need to start with emotional reassurances. Answer the specific fear they express and ask “Anything else?”

When you get statements like “There are some emails that don’t look so good the way they are written.” “I was going over the documents last night and couldn’t find the memo about the meeting.” You are talking to a factual learner. She is needs reassurance about the substance and content of the case. Deal with only one question then ask “Anything else?”

The practical learner could start off with “How long will I be on the stand?” “Do I sit in the courtroom or wait outside?” His first concerns will be about something physical. Explain the agenda or the courtroom layout. Again, just answer the question and ask “Anything else?”

One of the most challenging is the creative learner. If they feel they are getting a set of canned instructions they are unlikely to absorb, or accept, any of them. Their response will indicate that they have it all figured out, except why everyone thinks it is so difficult. All they need is to get on the stand and they’ll solve all your problems. Let this witness know that you are going to teach them a system that will help them be in charge of the room. It is a system that, if followed, will make their testimony shine. Then ask “Anything else?”

Ms. James adds “In addition to the learning styles, you may run into some answers that alert you to problems. For example, “I’m not afraid of some lawyer, if that’s what you mean” indicates you have a fighter on your hands. Or, “Afraid? I’m looking forward to this! I can’t wait!” indicates you have a crazy person on your hands.” We’ll discuss the combative, the overconfident, and the just flat out crazy in a subsequent digest.

Your initial question might be different if you have someone who has testified before. You might ask “What do you think is the good and the bad about testifying? That is, what do you think you were good at and what gave you problems?” Pay attention to the good or bad advice they were given. Listen for the nightmares or the over confidence. Use those points to guide your training during rehearsal.

After “Anything else?” probe for all their questions. Knowing their learning type will be a guide for how to frame their training. After you have addressed all their concerns your witness is more comfortable in proceeding with preparation.

Keep track and by now you may have already handled at least part of “the list”. All the items remaining will be covered in the next phase.


While you are rehearsing you will go over the facts and likely questions. Most likely you will be preparing for both direct and cross. A common difficulty is that when you want to point out a problem or comment on how well the witness is doing, you have to come out of character. You can’t be opposing counsel, supporting counsel, and teacher all at the same time. “Uh, just a minute are you being my lawyer or the other lawyer right now?”

A/V recording is a valuable tool in rehearsal. Traditionally it has been used to record the proceeding, and then have the witness watch it in a later sitting. Ideally it is used to review right away with the witness.

Recording the practice session initially in short, then longer, segments helps solve this problem. Start the questioning. Continue through for about ten minutes even when something happens that needs to be addressed. Watch the recording. It isn’t necessary to watch every question and answer, but go to areas where comments are required, where there is an opportunity for a learning experience. When certain problems are repeated often, you can reinforce the lesson with “instant replay”

Reviewing parts of the recording you might note, “I usually have to tell witnesses to slow down, but you already seem to understand that.” “Did you notice that you started to answer before I finished the question?” “I really liked that you noticed I was asking a compound question.” “If I were really on the other side, I’d have loved you volunteering all that when all I asked was ‘Who was there?’. Let’s try that again”

Start questioning again, first focus on the problem areas, then move on to new material. Review the tape at intervals.

Remember “the magic list” we didn’t use at the beginning? It would not hurt to have the list of wisdom and knowledge learned from your mentors and gleaned from your years of experience written out and at hand. You could check off each one as it was covered in the conversation about the witness’s questions and during rehearsal. You will probably find them all checked off by the time you are done.

Instead of a mind-numbing lecture before you even begin, all the important points of training have been organically incorporated into preparation. The witness has been able to internalize the lessons by seeing themselves doing something right or wrong, then if wrong correcting it, and having their progress recognized.

In her CLE “Make your Witness a Star!” Katherine James covers this process in greater detail.

The Trial Consultants in Haynes and Boone Trial Services can assist in implementing the technique we’ve just covered. We can assist in anything from understand their learning style to operating the video equipment. We are ready to support your effort.

For help with witness training contact
Ric Dexter
R-D Consulting at or visit our web page at