Witness Preparation
Assisting counsel by helping a witness to provide their best testimony.
At Decision Analysis we have developed unique method for preparing witnesses to testify. These techniques are based on the dozens of years of collective experience helping attorneys prepare for mediations, arbitrations, and trials. These techniques are fundamentally different from what others do. They are also different from what we have seen many attorneys do when they prepare a witness to testify. To understand the method, let’s begin with its goals.
GOALS
Every witness naturally has limitations in their ability to testify effectively in deposition and in open court. The key to successful witness prep is encouraging witnesses to do their best within these limitations and sometimes even to break out of them.
Generally, whatever counsel’s goal for a particular friendly witness cannot be accomplished unless the witness is a) believable, b) understandable, c) concise, and d) memorable. All of these qualities are characteristic of good testimony and all can be incorporated into two fundamental concepts or goals: 1) authenticity and 2) clarity.
Authenticity: In order for the trier of fact to see a witness’ testimony as authentic, the witness must testify as only they can, as the person they truly are. Thus, authenticity is a characteristic of the messenger, rather than the message. Attempts to hide or change the witness’ true nature raises doubts in the trier of fact’s minds, making the testimony less (a) believable. When evaluating credibility, the trier of fact also looks for a certain level of spontaneity in a witness’ presentation. If the witness’ testimony appears canned or rehearsed, it will also lessen authenticity and therefore believability.
Clarity: The second goal of witness prep is to help the witness to communicate clearly. Several factors are involved in achieving this goal. First, the witness must be encouraged to speak in an understandable (b) way, so that the trier of fact can comprehend the testimony. Information that is not understood cannot persuade. Worse yet, if the witness testifies in a way that confuses the trier of fact, there is a possibility that the trier of fact’s misunderstanding of the testimony helps the opposing party. Second, witnesses often have a hard time determining what is relevant and what is not. The aim is for the witness’ testimony to focus, to the greatest extent possible, on the information the trier of fact needs to make a favorable decision. This can help with the third factor, (c) conciseness. This is not brevity for brevity’s sake. Rather, it is training the witness to communicate the entire response to a question in the fewest number of words. This helps prevent the witness from offering more than is necessary and providing opposing counsel more pathways to explore.
The final characteristic of good testimony listed above is that the testimony be memorable (d). Testimony that is memorable is more likely to influence the trier of fact and obviously, testimony that is not memorable will have far less weight in the decision. Many factors can make testimony more memorable, for instance, if it is highly emotional. Given the often-poor performance by lay and expert witnesses in deposition and in court testimony, what really makes testimony memorable is if it displays authenticity and clarity. That is why we focus on these three individual goals and all three taken together in preparing witnesses.
Alternative:
While many witnesses are prepared to testify about the case issues they discuss with counsel in pre-trial meetings, jurors are resistant to testimony that appears canned or designed to persuade. More than any other qualities, jurors are looking for witness clarity and authenticity.
Credibility comes with the witness’s ability to help jurors understand the case. Additionally, jurors want to know who the witness is as a person and how their story fits into the overall narrative of the case. More importantly, specific questions in witness preparation can help to identify important and undiscovered case facts or background information to help counsel and jurors better understand the context for the case.
We assist attorneys with preparing witnesses by asking probing questions, alleviating their concerns about testifying and giving them listening and communication skills to:
- Increase the witness’s ability to control the deposition and cross-examination.
- Increase credibility by adjusting the witness’s attitude away from advocacy and defensiveness (during cross-examination) toward one of helpfulness.
- Help the witness to use their own personal background, experience, and authentic language to avoid canned or jargon laden responses.
- Help the witness to break down and simplify complex concepts for a lay jury.
- Help the witness to control nonverbal behaviors such as dress, eye contact, facial expression, posture, gesture and vocal variety.
- Help the witness to align their story with the case.
1. See the story of the case
Tell authentic stories that ring true rather than a recitation of facts and law that meet required definitions.
2. See the story of the case
Tell authentic stories that ring true rather than a recitation of facts and law that meet required definitions.
3. See the story of the case
Tell authentic stories that ring true rather than a recitation of facts and law that meet required definitions.
4. See the story of the case
Tell authentic stories that ring true rather than a recitation of facts and law that meet required definitions.
5. See the story of the case
Tell authentic stories that ring true rather than a recitation of facts and law that meet required definitions.
6. See the story of the case
Tell authentic stories that ring true rather than a recitation of facts and law that meet required definitions.
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