As you get closer to your trial date, your days and nights will be consumed by trial preparation. An important part of that work is helping your witnesses get ready to testify. Of course, you know that you can’t tell witnesses what to say (not if you want to continue practicing law), but you can help them prepare how they will say it. Here are some tips to improve your pre-trial witness preparation:
Don’t give advice before you see how the witness performs. If you went to the doctor and the first thing he said was, “Ok, I’m going to give you a prescription for Ritalin that you’ll need to take 3 times a day,” you’d run out of the office. What type of a doctor would make a diagnosis without reviewing your symptoms? What type of doctor would write a prescription without hearing what was wrong?
Don’t make the same mistake with your witness. Don’t prescribe a remedy until you’ve gotten the chance to see the witness perform on the witness stand. Put them in the witness stand and start firing away with your questions. Ask short questions, long questions, open-ended questions, leading questions, and accusatory questions, then watch how the witness performs. Only then should you make any recommendations.
As you watch the witness testify, here are some things you can evaluate:
How does the witness sound? Does he need to speak up? Or is he so loud that the jury will be blown back in their seats? Is he making “popping” noises in the microphone? Speaking too quickly? Too slowly? Is he using incomprehensible buzzwords or jargon to explain what happened? Saying “uh” or “um” too often? Does he articulate his words, or does he mumble? Does he fade away at the end of sentences?
How does the witness look? Does he slouch in his seat? Sit ramrod straight? Lean forward? Drape himself over the witness chair like a teenager on the phone? Is he too comfortable? Too stressed? Is he looking at the jurors? Playing with his hair? Putting his hands in front of his face? Crossing his arms? Speaking animatedly with his hands? Scowling? Fake smiling? Grimacing? Avoiding eye contact? Making too much (“Stop staring at me, creep!”) eye contact? Talking to his shirt or towards the floor? When he responds to questions, does he look at the questioner, or does he speak directly to the jury? Does he look at all of the jurors, or just one of them? (Oh crap! Is he actually flirting with one of the jurors?!?) Is he dressed too warmly, so that he’s sweating? Gross. (Also, it makes him look like he got caught doing something dishonest.)
How does the witness act? Does he become confrontational when you switch to cross-examination? Does he change his body language based on the questioning style? Does he get defensive when you switch to certain topic areas? Does he change the tempo of his answers (sometimes pausing for an extended period before answering, and other times answering immediately) based on topic areas or questioning styles? Does he interrupt before the question is completed? Does he try to look at you (“Help me, please!”) during cross-examination?
After you’ve evaluated the witness’s performance, it’s time to make recommendations for improvement. Your recommendations should follow these guidelines:
Limit your initial comments to a few simple improvements. When I coach trial lawyers about improving their courtroom skills, I try to make only one or two specific comments. Giving someone a 30 point plan of action for improvement has the same effect as not giving them any guidance for improvement. 30 points are too many — they’ll feel that they can’t do anything right, and will just give up. But if you give them a few, limited areas for improvement, they can do that. And then next time, you can give them 2 or 3 more things to improve upon.
Be honest. Don’t say something nice just to give false praise. Only imbeciles are unable to recognize false praise. Everyone else hates it. And you’ll offend them. If you can, it’s nice to tell them something positive about their performance, but don’t lie or B.S. ’em. If the witness is sincerely interested in improving their performance, they’ll appreciate your candor.
Preparing witnesses to testify is one of the most important pre-trial functions a trial lawyer can perform. Get the most out of the limited time you’ll be able to spend with each witness. Apply these guidelines to your pre-trial preparations and you’ll see dramatic improvements in your witnesses’ courtroom presentations.