Download this articleEditor Note: As a means of illustrating specifically 'how' to prepare a witness for the 'prep' question, Bill Grimes offers this brief practice-oriented piece.
Despite the exposing of Jeff Skilling's jury consultant while he was on the stand in his 2006 Enron fraud trial,1 and a federal judge's ruling in California in 2008 that an expert witness can be cross-examined about being prepped by a jury consultant,2 the following remains a common reaction from attorneys: "The witness doesn't have to prepare for that. I'll never let it get that far." While it is probably true most of the time that cross-examining a witness about preparing with a jury consultant would be successfully objected to as violating attorney-client privilege or attorney work product, it is obviously not true all of the time.
Prepping witnesses for the "prep" line of questioning has become a standard part of the witness preparation process for many jury consultants. While attorneys remain apprehensive about the jury ever finding out that a jury consultant was present at witness prep, and many attorneys don't even want to discuss it, there is evidence that jurors finding out about the presence of a consultant has little affect on how believable jurors think the witness is. According to Ken Broda-Bahm of Denver-based Persuasion Strategies, a 2008 survey by his firm3 found "no significant differences" between a group of people who read a fraud case scenario and were told a key witness met with a jury consultant who "…helped him practice his testimony…" and a group of people who read the same scenario with no mention of a jury consultant.
As the Jeff Skilling experience showed however, what can be a problem is how being prepped by a jury consultant is revealed to a jury. It doesn't help if the witness stammers, stutters and stalls when cross-examined about a witness prep session. The startling revelation that Skilling's trial consultant was in the courtroom while he was testifying created drama Skilling didn't need. So, it's prudent for witnesses to be prepared for worst case scenarios, one of which is an attempt by opposing counsel to have the jury believe the witness was "coached" about what to say.
Consider this exchange:
Q. Mr. Corrigan, please state your name and job title.
A. Michael A. Corrigan. I'm chief operating officer for Midwest Fabricating.
Q. Midwest Fabricating is the defendant in this case, is that correct?
A. Yes, that's true.
Q. How did you prepare for your testimony today?
A. I met with our attorneys a couple times, and reviewed my deposition.
Q. Was anyone else there besides your attorneys?
Where does your witness go from here, assuming the judge overrules the attorney's objection? Tell the truth, of course. Think about that for a moment. If a jury consultant was there, a simple "Yes" is truthful. Also true is, "Yes, a jury consultant was there." This is also an opportunity for the witness to say why a jury consultant was there. For example, "I've never testified in front of a jury before, so yes, there was someone there to help me be as clear as possible."4 The latter response not only diffuses the situation, it may score points with the jury. If the witness simply responds, "Yes, a jury consultant was there," the cross-examining attorney may end the line of questioning right there, leaving the jury to ponder the witness' need to have a consultant "prepare" him or her. The opportunity for the witness to give a perfectly legitimate reason for prepping with a jury consultant is missed.
The advantage of explaining why a jury consultant was present rather than just acknowledging that one was there is also borne out in a survey by Chicago-based Zagnoli McEvoy Foley Litigation Consulting in 2008. All 221 jury-eligible people presented with a short negligence litigation scenario knew a jury consultant helped prepare a key witness for the defense. Roughly half the group read Testimony-A which ended:
(Attorney): Did you practice your testimony?
(Witness): Yes.
The other half read Testimony-B which ended:
(Attorney): Did you practice your testimony?
(Witness): I've never testified in court before, so yes, we talked about what I probably would be asked and how I would answer.
When asked directly about the presence of a jury consultant (keep in mind there was no discussion of the context of the case), a majority of respondents expressed skepticism that a witness would need such assistance. Those who read the explanatory response from Testimony-B, however, were less likely to believe a witness was "coached" and more accepting of a jury consultant helping prepare the witness than those who read the limited response of Testimony-A.
Every situation and every witness is different. It is important during the practice session to help the witness articulate for themselves the benefit of preparing with a communication expert. Have them talk about what they are getting out of the exercise. What were their concerns before the session started? How is the session helping? It is important to have the witness come up with the explanation in their own words. Pat McEvoy, a founding partner of Zagnoli McEvoy Foley, does not believe jurors would object to a witness offering a comment such as:
"I have never testified in court before, and I wanted to know what to expect."
Ken Broda-Bahm says much the same if a witness said on the stand something along these lines:
"I really appreciated having someone there who could help me understand what the lawyers are doing."
Chris Dominic, President of Tsongas Litigation Consulting, a Seattle-based firm, says appearing nervous when asked on the witness stand about prepping with a communication expert can create a negative impression with jurors. Dominic says it's important to convey to the witness during the prep session that "there is nothing to hide."
Witness preparation sessions routinely include role playing of a likely direct and cross-examination – what the witness can expect to be asked and how he or she would answer. Preparation and practice for any important exercise makes sense. Why should preparing for the high stakes, adversarial exchange of cross-examination be any different? If given the opportunity to convey that to a jury, a witness should take advantage of it.
Notes
1 Jeff Skilling's jury consultant, Reiko Hasuike, was identified in court by prosecutor Sean Berkowitz while he was examining Skilling.
2 Judge Ronald M. Whyte, Hynix Semiconductor Inc. v. Rambus Inc., U.S. District Court for the Northern District of California, February 8, 2008.
3 Five hundred respondents nationwide were presented with a fraud case scenario. Half of them were told a key witness met with a jury consultant who "helped him practice his testimony." The other half was not given that information. All were asked about the believability of the witness.
4 The American Society of Trial Consultants' (ASTC) Witness Preparation: Practice Guidelines expressly state, "Trial consultants do not script specific answers or censor appropriate and relevant answers based solely on the expected harmful effect on case outcome."
Bill Grimes ([email protected]) has been a litigation consultant since 1990. Prior to that he was a journalist. Among the services Bill provides are jury research, witness preparation, jury selection, trial strategy and post trial interviews. He is with Chicago-based, Zagnoli McEvoy Foley Litigation Consulting.
The idea that "there is evidence that jurors finding out about the presence of a consultant has little affect on how believable jurors think the witness is" should be subject to dispute. The studies on that subject referred to in this piece are based on mock jurors reading witness testimony or less, not on viewing an actual witness testify live and be confronted with the testimony preparation question. Respectfully, I believe there is a substantial difference in those two situations.
Yes, I agree the witness should be ready with a good answer, but I disagree that real-life jurors would be unaffected by the revelation that a trial consultant help prepare him for testimony. To the contrary, I think it could have a profound effect in a close case when the witness's testimony seems too good to be true. Moreover, I believe an experienced trial lawyer would be at least as effective in preparing a witness as a jury consultant.
My experience in working with witnesses tells me that their are several reasons why a skilled social scientist is more effective than a skilled trial lawyer.
1. We are not the lawyer. In almost every witness prep session, the witness has told us important things that they haven't told their lawyer.
2. Lawyers have a hard time communicating to the witnesses what happens in the legal environment because they have become so accustomed to that arena they take most of it for granted.
3. We have a different skill set, and bring a different perspective to the session
4. Most lawyers have no idea how to help the witness deal with the stress they are going to be under
5. Many lawyers are not good story tellers themselves, so can't help their witnesses become better at telling their story.
6. Witness prep sessions for the average lawyer is mostly giving them a tape/DVD to watch with a handout and then "going over" the testimony with them right before testifying. Neither one has any particular proven efficacy.
Now their are exceptions to the above, but I have found it those exceptions very rare.
I couldn't agree more with the advice given in the article and related comments in support of the trial consultant's role in witness preparation. Particularly the point by Shafer about witnesses revealing to us things they have never told their attorneys. I haven't kept statistics, but I'm confident saying that it happens in 85% of my witness prep sessions. That alone is a good reason to include a trial consultant in the process. And once we are there, we have a responsibility to help witnesses address the potential for a question about prep.
I do also agree that prep with experts raises a legitimate question. In my experience, an expert who says, "I bring a great deal of technical expertise to this case and I sometimes have a hard time communicating that in plain english. My work with an expert in communication was very helpful to me and I think my testimony is more clear and useful to the jury as a result" maintains his credibility better than one who was not prepared at all. My thought has always been that the cost of expert witnesses is so incredibly high for lawyers that it is critical they communicate effectively in depositions and at trial.