By Angie Hickox
Witness preparation is one of my favorite areas of trial consulting. I find the work to be rewarding, as improvements are observable and impactful and witnesses report feeling confident and ready.
Many newcomers to the trial consulting field also find this area appealing and are looking for opportunities to observe a witness preparation session. Opportunities to observe in person can be rare as who and how many people are in the room is often tightly controlled. Regardless of whether you have had the opportunity to observe or not, a few practical tips can help you get ready.
These tips are organized into two segments—general preparation and witness-specific preparation. If witness prep is an area of interest, you should begin practicing general preparation strategies now. For me, the general preparation strategies described below are routine and the foundation of work I do as a trial consultant.
General Preparation
Review the ASTC Professional Code. Any time I take on a new task as a consultant or revisit something I have not done in a while, I review the ASTC Professional Code. You should too. The Code was created by professionals with years of experience. The Code not only enhances the credibility of our profession but also provides real practical things you need to do (or not do) when conducting a witness prep session. Having it top of mind before a witness prep session is a must.
Read articles and watch webinars. There has been a LOT written and said on the subject of witness preparation both from the standpoint of attorneys and trial consultants. To date, there have been 65 articles written on witness prep in this publication alone! Reading, watching, and listening to others with experience and expertise on this subject is guaranteed to help you feel more confident.
Watch real witnesses testify. As a general rule, trials are public proceedings. Typically, you can go to a courthouse and watch live testimony. Look up the docket for a courthouse near you to see when jury trials will take place and attend. Ask an attorney friend to let you know if they have an upcoming trial you can observe. You can also watch witnesses testify in real trials from the comfort of your own home via CourtTV, YouTube, or other similar outlets. When you watch any testimony, record your observations. Take note of how you think the witness came across and why. Consider what advice you would give the witness to improve. If you have a mentor in the field, see if they have time to watch the same witness testimony and arrange for a discussion of your observations and how they would coach the particular witness. Share your ideas with your mentor and seek feedback.
Witness-Specific Preparation
Understand the existing record. Prior to any witness prep session, you should review the witness’s deposition testimony and any expert reports. For the deposition, a video is most helpful. If video is unavailable, the transcripts are invaluable to review. Review of the deposition will help you understand the case and the witness’s role. As you review, observe the witness’s performance. Take note of how you think the witness comes across. Ask yourself: 1) Do I understand what the witness is saying? 2) Is the message clear and concise? 3) Are there any distracting non-verbal behaviors? 4) Did the witness say anything that hurts the case? 5) Is the witness credible? Likeable? Knowledgeable? Persuasive? 6) What did the witness do well?
Develop a witness preparation plan with counsel. While there are several important areas to cover in this discussion (see the ASTC Professional Code), there are two I will address here—how the prep is conducted, and the goals for the prep.
Prior to any witness preparation, a consultant should discuss with the attorney and develop a plan for how the session(s) is to be conducted. The main goal is for the consultant and attorney to agree how they will work together to prep the witness.
Topics to discuss beforehand include a basic agenda for the session, what role the attorney sees for you in the session, how you will be introduced to the witness, and the preferred method for delivering feedback to the witness. For example, some attorneys prefer a full run-through of the direct examination before any feedback is delivered. Others prefer to stop and start with feedback interspersed throughout the session. Some attorneys want you to take an active role in giving the witness feedback directly, while others want your feedback and advice to be delivered through them. Also, some attorneys want the witness to be involved in strategic decisions on the substance of the testimony. Others prefer the witness not be involved. An effective consultant is flexible, accommodating, and mindful of an attorney’s preferences. As you gain experience, you will come to form your own views on the best ways to structure witness prep sessions and deliver feedback.
To create goals for the session, understand what the attorney views as the witness’s areas of strength and weakness and share your thoughts as well. In addition, you will want to know how the witness fits into the case overall. Have an understanding of the topic areas the witness is expected to cover as well as what other witnesses will testify and the areas they will address. Many witnesses tend to think the whole case rests on their shoulders, but that is rarely the case. By helping the witness see their role, it often improves their composure and clarity on the stand.
Know the audience. Take time to review the demographics of the trial venue jurors. Level of education and common types of jobs help provide a sense for how technical the witness’s testimony can be and what sort of themes, words, references, etc. may (or may not) be well received. Be ready to share with the witness an overview of who might make up the jury. If mock trial data exists, review how mock jurors reacted to the case and their sensibilities. In addition, if video clips of the witness were shown at the mock, review any feedback the mock jurors gave on the witness’s testimony and demeanor.
Know the courtroom layout. Sometimes I have put a witness at ease merely by knowing the courtroom’s layout and by being able to give them a sense of what it will be like on the stand. I make sure to tell the witness where the judge will be, where the jurors will be, if there is a screen in the witness box for their slides/exhibits, where it is located, what type of microphone they will have, where the jurors will see the slides and exhibits, where the attorney asking them questions will be, etc. I try to have witnesses visualize the setting. Providing them a diagram of the courtroom is a good way to talk through the particulars.
Know the rules and preferences of the Court. Judges can vary greatly in terms of how they implement the rules of procedure and their preferences for how witnesses testify. Some are very sensitive to witnesses giving narrative answers. Other judges are very sensitive to witnesses not giving direct answers on cross and/or going beyond the scope of the question. Understanding the judge’s practices can help you deliver accurate and effective advice. To get this information, either ask the attorney you are working with or review transcripts from the judge’s prior trials.
Start small. Do not let concerns about your level of experience prevent you from making a positive contribution. The client hired you for a reason. That said, sometimes it is good to give the witness advice that is very easy to adopt. A small first step helps build confidence for you and for the witness. Large improvements tend to be made incrementally and not all at once. Ideally, you will have multiple sessions to make small changes.
Final Thoughts
Through time and exposure to many unique witnesses, you will begin to develop your own set of tools and deploy them to effectively help the witness testify truthfully, clearly and persuasively. While opportunities to observe a veteran trial consultant at work may be hard to come by, the good news is there are easy ways to get started learning on your own.