By Dr. Ken Broda Bahm:
Every witness preparing for testimony is going to prepare a little bit differently. Those helping with that prep need to adapt to the unique challenges presented by opposing counsel, the case characteristics, the witness’s role within the case, and the witness’s personality and communication habits. But there are inevitably some common features and messages contained in that preparation session. One common feature is the need for witnesses to do some follow-up “homework” on their own. Not everything can be durably fixed during the constraints of a single meeting, or even a series of meetings. And some factors that are often critical to the success of the testimony will ultimately be in the witness’s hands.
At the close of a preparation session, I like to leave the witness with a recommended set of tasks that they can apply on their own. I think doing this sends a message of empowerment and keeps them focused on the idea that they ought to keep working on it — not to the point of being stressed or worried, but to the point of believing in some level of achievable improvement. Each witness will need their own customized recipe, but in this post, I will share my five most common homework recommendations
Know Your Foundation
The most basic advice is to know the substance that you are going to be asked about, or the record with which you’ll need to be consistent. In the case of a deposition, that might mean the set of records or documents that will be expected to be familiar to you, and in the case of trial testimony, it will be the deposition itself. In all cases, this isn’t an exercise is creative open-ended research. You don’t want to end up opening doors for opposing counsel, so the rule is to only review it if your lawyer wants you to review it. But within the set of materials that you should know, spend significant time reviewing. The goal is not to memorize it, but to become comfortably familiar with the substance so that this knowledge can be your sword and shield once you are being questioned by opposing counsel.
Address Your Bad Habits
Typically during the preparation session, you will discover — or will be told about — one or two bad habits. Maybe you’re answering too quick. Maybe you’re cutting in before a questioner finishes. Maybe you’re too quiet, or too aggressive. Maybe you’re not listening closely enough. Maybe you’re answering in only one word when a full sentence would be better. Whatever the issues, there are ample opportunities to work on it outside the constraints of a formal preparation meeting — your everyday conversations. In the week or so prior to you testimony, you should make yourself conscious of your habits during ordinary exchanges with friends, family, and co-workers. And if you can practice fixing the problem without being too obvious or contrived, then you should try it.
Correct Your Trouble-Spots
On the substance, there are areas of where the testimony is less comfortable. There are always exceptions, but I’ve found that for most witnesses, you can count the true trouble-spots on one hand. So take some time during your meeting to identify them, and devote some thought and practice to what the best answers are. You might start that process during the prep session, but it should continue afterwards, with the witness giving some solid reflection to both the ideas and the language that constitutes the best answer that the facts allow. I encourage witnesses to focus on the over-arching issue, not a single questions, and to think of simple bullet points — not a scripted response, but a sequence of boiled-down ideas — that provide the best answer to that issue.
Work on Your Outlook
Some witnesses might need to devote some follow-up work to getting into the right mindset, so you don’t present yourself as too deferential, too aggressive, or too uncertain. It comes down to you frame it: This isn’t a quiz-bowl, and it isn’t a test of your character or morality. You aren’t going into battle. And you’re not defending yourself under a hot lamp under police interrogation. Instead, you are calmly, patiently, and probably repeatedly just providing an explanation of what you know and how you know it. And you aren’t talking to opposing counsel, or even to the court reporter — you’re talking to an actual or potential jury. I’ll often encourage witnesses to think about that and to get comfortable with that mindset as the “patient explainer.”
Watch Your Video
I don’t always give the advice to watch the video of the practice Q and A during a witness preparation session. For some witnesses, I don’t want to make them more self-conscious or negative about the testimony. And also, for many of us, it is a little unpleasant to see ourselves on video because we don’t look or sound the way we expect. But for witnesses who are able to get past that, watching the video can be an excellent way to get some valuable perspective on how you come across. There is some nuance to it, but witnesses will sometimes be able to self-correct either a substantive or stylistic problem just by seeing it. One common bit of advice I give though: Pay as much, or more, attention to the good examples.
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Other Posts on Witness Preparation:
- Don’t Practice til You’re Capable, or til You’re Comfortable — Practice til You Can’t Fail
- Use Your Deposition as Your Sword and Shield
- If You Don’t Know the Answer, Then That’s Your Answer