Reprise: Make Sure Your Witnesses are Prepared

March 13, 2014 § Leave a comment

Reprise replays posts from the past that you may find useful today.

 TOP TEN TIPS TO IMPRESS A CHANCELLOR AT TRIAL: #9

May 3, 2012 § 3 Comments

 This is the second in a series counting down 10 common-sense practice tips to improve your chancery court trial performance. If you’re a long-time reader of this blog, some of these will be familiar. That’s okay. They bear repeating because they are inside tips on how to impress your chancellor, or at least how to present your case in a way that will help her or him decide in your favor.

TOP TEN TIP #9

Make sure your witnesses are prepared.

I am regularly astonished at how unprepared and consequently inept some witnesses are at trial. Some examples:

  • The party who testifies to her 8.05 as if it were a runic stone tablet that fell to earth from the planet Uranus instead of as if it were a document she herself helped to originate.
  • The lawyer who slams his head repeatedly against objections for leading because he can’t come up with any other way to clue his witness in to what he expects the testimony to be.
  • The client who probably presented herself as a roaring lion in the intial interview, and is now a mewing pussycat, much to the obvious chagrin and buffaloment of her attorney.

These and many, many other unpleasant witness experiences can be avoided, or at least ameliorated, through the simple expedient of trial preparation in which the lawyer familiarizes the witnesses with what is headed down the tracks right at them. It’s what your client paid you for.

Prepare your witnesses for trial. Go through their testimony. Test their recollection.

Go over that 8.05 with your client. Remember that although it’s not the first one you’ve ever seen, it probably is the first one your client has. Clients have no concept how important and even crucial the financial form is to their case. Consequently, they are haphazard and careless in prepping them, omitting important items, overstating (often absurdly) some expenses, while drastically understating others. Challenge your client’s memory as to what was included in each category and how the figures were determined. Make her defend her figures. If she can not, suggest she reconsider and adjust as necessary to make it true. Is each and every asset listed, and are the values realistic? Ten tips for more effective financial statements are here. And five more are here.   

Explain for your client what the trial factors are that will apply in your case, and what the important facts are that you need to get into the record. For instance, if you have a child custody modification case, explain material change, plus adverse effect, plus best interest, Albright factors, and how his or her testimony fits into the picture. Go over some expected questions and critique your client’s answers.

Weed out self-destructive language. It’s not ethical to tell a witness what to say, but it’s perfectly ethical to tell the witness how to say what they have to say. In other words, you can’t change the facts, but you can help the witness select a better, truthful way to state those facts.

Encourage your witness never to volunteer or guess. “I don’t know” is a better answer than “Well, you didn’t ask me, but I guess I was at fault, if you think I am.”

Train your witness to paint a word picture of what happened instead of just babbling a bunch of labels. “The windows were all busted out of the house, the wallpaper was ripped down, there was a puddle of blood on the floor as big as a sow pig, and there was a fire burning in the kitchen trash can making a scorched spot on the ceiling,” is a lot more effective than “The house was tore slam up.”

And while you’re at it, teach your witness some points of court room etiquette: don’t speak over the lawyers or judge; speak loudly and clearly; don’t chew gum or chewing tobacco in court; stand when directed by the bailiff. Every judge has his or her own preferences and quirks. Any lawyer who has spent even a short time in my court can tell you, for example, that I can’t abide witnesses and lawyers speaking over each other. That’s a quirk of mine that you should warn your witnesses about. Your judge has similar idiosyncracies. I practiced before a chancellor decades ago who could not stand to see women in short or low-cut dresses. I know it’s so un-twenty-first-century, but if you find yourself in a similar throwback situation, prudence would suggest that you warn your client in advance so that she could adjust her trial-day wardrobe accordingly.

Warn your client not to get argumentative or sarcastic with opposing counsel no matter how big a jerk he acts like he is.

Tell the witness how the proceedings will go and what to expect. Most people headed to court only have tv as a frame of reference for what to expect. Tell them how the case will proceed and who all the people will be in the court room. 

Explain that it’s a lot less damaging to be hurt by the truth than to be caught in a lie.

If you take your client’s money and don’t prepare him or her for trial, you are taking money under false pretenses. And if you think you will slide it by an oblivious  judge, think again. The unprepared witness is usually the second-most embarassingly conspicuous aspect of a trial, right after the unprepared lawyer.

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