Preparing your witness for testimony

By John Allison

Your witnesses should be thoroughly prepared for their testimony, whether they are giving a deposition or testifying at trial. In preparing a witness consider sharing your case themes to help the witness understand the context for his or her testimony.

Make sure the witness reads documents authored by the witness that might become exhibits or that might be used on cross-examination. The witness should also read affidavits and transcripts of deposition testimony previously given by the witness. A change in testimony or position, without a reasonable and convincing explanation that is well thought out in advance, will seriously undermine the credibility of a witness.

When you are preparing a witness for a deposition or for cross-examination at trial, remind the witness to be sure he or she understands the question being asked and to answer that question without volunteering additional information. Also emphasize the importance of telling the truth. One approach is to tell the witness to “be sure you understand the question being asked, and then give the shortest truthful answer you can give.”   

Some witnesses need to be educated about certain behaviors that will undermine their credibility and likeability. These behaviors include an arrogant or a condescending attitude, a display of anger, and disrespectful treatment of other people. A witness should also avoid flippant comments and inappropriate facial expressions or body language.  The testimony of a witness should be factual, without overstatements or hyperbole.

A defensive manner, or a tendency to over-explain an answer, suggests that the witness either feels ashamed of the testimony being given or has something the witness is trying to hide. For some witnesses it might be helpful to videotape a “dry run” of the witness’ testimony. When the witness watches the video replay he or she will see a vivid image of the behaviors the witness will want to avoid when actually testifying.

By thoroughly preparing your witnesses you will be able to anticipate the testimony each witness is likely to give so that you can frame your direct examination in a way that avoids the use of leading questions. In addition to being objectionable, leading questions will create the impression in a jury trial that you are trying to manipulate the evidence by putting your words in the witness’ mouth. Thorough preparation will also make you aware of any potential problem areas in a witness’ testimony.

John Allison is a professional career coach backed by years of experience as a successful lawyer. He is the founder of The Coach for Lawyers and author of "The Art of Practicing Law: A Practical Guide for Lawyers."