Some Things are Better Left Said

March 9, 2020 § 1 Comment

There’s no accounting for what a client might say on the witness stand. If you’ve done any courtroom work at all you can attest to that.

In their divorce case, Thomas and Debra Oates were locked in a dispute over the marital estate, consisting of a 39-acre parcel of land subject to a mortgage, along with the usual baggage, physical and metaphysical, that one accumulates over the span of a 13-year marriage. Debra claimed that the 39 acres were a non-marital inheritance. Thomas contended that the property, which had indeed been an inheritance, had lost its separate character. And yet …

When he took the witness stand and testified about it, after being asked what, specifically, he wanted the chancellor to award him in the case, here is what he had to say:

Q. If you could state which of those items you would like to have, what would they be?

A. My motorcycle and the apparel and my pictures, personal properties, my daddy’s stuff.

Q. Slow down. Your motorcycle?

A. My apparel, motorcycle apparel, my daddy’s stuff, and my guitars and amp.

Q. And that is all you want the judge to award you in the marital estate?

A. Yeah. I mean I’d like to have the four-wheeler, but I don’t know if it’s there or not. [My emphasis]

Does that seem rather incomplete to you? (Hint: there is no mention of the 39 acres).

The chancellor took Thomas at his word, found the 39 acres to be non-marital, awarded it to Debra, and let Thomas go forth with his stuff.

Thomas appealed, and you have probably already guessed the outcome. Affirmed by the COA on February 18, 2020, in Oates v. Oates.

Every client is more or less unpredictable when it comes to the pressure cooker of the witness stand. Some like it hot. Some wither. All struggle to a greater or lesser degree to find the right words to say what needs to be said. You can make your client’s testimony more predictable and successful by going over some of, the most important parts in particular, in advance of trial. Remember, it’s perfectly ethical to help a client with how to tell the truth — phrases to avoid, better choices of words –, and it is unethical to help the client make up a story that will win the day. Trial preparation is in most cases critical. I wish more lawyers did it.


August 9, 2011 § 5 Comments

If you have never had a witness implode on the stand, this post is not for you.

If, on the other hand, you have struggled inwardly to maintain your composure as your witness apparently has forgotten everything he ever knew about the case, or he has abandoned all common sense, or she blurts out all manner of facts she never revealed to you before and is laying waste to her own case as effectively as if she were her own opposing counsel, then this post may help.

An important part of trial preparation — you do prepare for trial, I hope — is preparing your witnesses. Uh — you do prepare your witnesses, I hope.

It’s pretty clear when a witness is prepared. The witness and the lawyer work almost in tandem. The witness seems to understand where the lawyer is going with the questions and goes along easily, without a lot of leading and prodding. The witness’s testimony is clear.  The witness knows how to say what needs to be said, and handles himself well on cross examination.

In other words, the witness is coated in teflon and swathed in kevlar. Non-stick and bullet-proof.

It doesn’t take a lot of time and effort to prep your witness if you focus in on what needs to be addressed. Here are a few helpful tips. Take them as a starting point and fill in with as many others as you can come up with.

  • Take a few mintues to explain to your client what it is you have to prove to have a successful day in court. For instance, if modification of child custody is in issue, explain material change, adverse effect and best interest.
  • Go over some questions and elicit your client’s answers. Suggest more effective ways to say what the witness is going to testify to. It is entirely ethical to suggest more effective ways to state the facts; of course it is unethical to change the facts or tell the witness to testify to something the witness did not perceive. You can tell the witness how to say it, but you can not tell the witness what to say.
  • Remind the witness to testify about facts, and not impressions. Tell what you saw with your own two eyes without using labels. “The windows were all broken out of the car, the side mirrors were broken off and hanging down, the headlights were smashed, and the tires were all flat” is a lot more powerful than “The car was busted up.”
  • Tell the witness about courtroom etiquette. Don’t chew gum or chewing tobacco, speak up loud and clear, be respectful of the court and other attorney, wait until the question is finished before answering, don’t interrupt any other speaker, dress conservatively, and avoid confrontation with the other party. If you want to bring something to your lawyer’s attention, write it down and pass a note; the lawyer has enough on her plate without having to deal with interruptions.
  • If an 8.05 statement will be used, go over it with the witness. Test memory about figures and identify any trouble spots. Tips for more effective financial statements and financial testimony are here and here.
  • Prepare the witness for cross examination. Explain how it works and confront the witness with the most obvious weak points. Suggest ways for the witness to deal with it. Caution the witness about the other lawyer’s typical bag of tricks on cross and offer some strategies to deal with them.
  • Explain to the witness that he will be nervous when he takes the stand, but so is everyone else who has to get up there.
  • Explain how hearsay works, and that just about every answer that begins, “He said …,” or “I heard her say …” or “The teacher told me that …”, etc. will elicit a reflexive objection. Recommend ways around hearsay.

A few pointers for more effective chancery trials are here.

There are two kinds of witnesses: the kinds who help your case; and the kinds who hurt it. You want every witness called by you to be in the former category. Witness prep will go a long way toward that end.

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