Tips regarding Witness Prep and Questioning Witnesses
By Marni Becker-Avin

Examining the witness in front of a mock jury or watching the video deposition are excellent sources of information with regard to what needs to be worked on with the witness during the preparation. These things are useful, but not required, in order to prep a witness adequately.

1. Let’s start with a basic principle: witnesses should always tell the truth as they know it. Make sure they know the only expectation is that they tell the truth. If anyone later asks the witness what you said in the discussion, you have told her to tell the truth.

2. Tell the witnesses that you are there to work on demeanor, that you will periodically interrupt the mock cross examination in order to point out certain behaviors, and that she should ignore anything of a substantive nature that you might inadvertently say. Tell the witness to focus on the delivery, rather than the actual answer. You are preconditioning the witness to listen for and internalize the reframing of her words, and embrace them as her truth.

3. Make sure to provide the witness with a pad and pen. Rather than handing out a script of how you want the witness to answer (which may run afoul of Bar regulations), the client may write down certain things of her own accord, all of which are the truth, and which will reflect the testimony given at court or depo. If you want to make sure the client picked up on something that was especially relevant or of a substantive nature, you can make a comment such as, “I will have to remember to write that down when I get upstairs.” The client will then pick up his or her pen.

4. In order to suggest different word choice for the same concept without consciously correcting anything of a substantive nature, you may want to implement one of two techniques: (1) You can feign ignorance of the topic, and appeal to the person’s ego. By asking him to explain it to you, he will necessarily have to rephrase the sentence in a simpler or clearer way. (2) You can also try the modeling affect by asking the witness to speak up so you can hear him. For example, “I’m sorry, Mr. Smith, did you say X,Y,Z?” You are going to have to speak louder for the jury to hear you when you say that because it’s important. Obviously, the XYZ is the reframing of the witnesses’ response. By saying the same thing in a slightly different way and making the conscious focus on the demeanor, the next time that person is asked that question, he should “model” the way you re-framed it.

5. The appropriate behavioral response is crucial for presentation in front of a jury. You must discuss with the client non-verbal communications, including when to lean forward (might communicate aggressiveness but may also connote interest, depending upon circumstances or context), when to sit with arms crossed (could be defensiveness or could be reproach of opposing attorney’s tactics), when to portray a relaxed posture (could be disrespectful to the jury or could be a lack of concern).

6. The same instructions must be discussed regarding verbal communications, such as how to conduct direct examination (open ended, stare at jury, tell the story, conversational, include all jurors), cross examination (when to use ma’am and sir—too much is fake but using it too little means your mother didn’t raise you right—when to look at the jury, when to look at your own attorney, and when to look the opponent in the eye). Other things to consider include timing of response (how long to wait before answering and why, how long the response itself should be and why), and how to deal with silence. Don’t ignore what happens to the witnesses when they get nervous, and remember to prepare for same, be it through initial questioning or direct teaching of relaxation techniques.

7. For the client prep, it is important to touch upon the “table” demeanor in addition to the behavior on the stand because regardless of what is going on in the courtroom or who is on the stand, someone on the jury will always be watching the parties’ tables. In other words, I am talking about the rolling of the eyes, shifting in the seat, writing notes to the attorney, shuffling papers to create a distraction, playing with keys or tic tacs or anything else that may make some noise.

8. Some discussion should be had as to the appropriate attire for court. Attorneys may want a refresher course in this too. For example, is it okay to wear cute patterns on ties, or should it be completely and totally conservative? Are black suits okay to wear, and how about pale yellow or blue shirts underneath?

9. Witnesses should realize that the opposing attorney will try to bait him into losing his cool. Allow the attorneys to become as rude as they want. If the witness is always polite and respectful in return, then it will backfire on the attorney big time. Many witnesses get psyched out when the opposing attorney starts flipping through the deposition for impeachment. Should the witness make a mistake, then simply apologize and correct it by explaining how long ago it all occurred. Explain that you are doing your best.

10. Expert witnesses might have to be brought down to earth a little bit and understand that they might be intelligent on the topic, but that does not give them the right to be arrogant or obnoxious on the stand. The expert must be able to communicate effectively with the jury, and simplify the statistics, vocabulary, charts or scientific tests without coming across as a condescending jerk . The truth of the matter is that the witness is not better or above any of the jurors sitting there listening to his testimony. Experts like to hear themselves talk, and need to be encouraged to stick to the question asked rather than going off on a tangent. Keep the direct examination as short and as interesting as possible so as to insure that the jury will pay attention and comprehend all that is being said.

11. Help the witness by asking the appropriate questions in the appropriate manner. Do not ask questions on direct examination that begin with “did”, “could”, “were”, or “have” because these will only achieve a yes or no answer. In order to get the witness to speak in the narrative, ask questions that being with “what”, “how”, “tell us”.

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