3 Perspectives On Preparing Witnesses
What do we talk about when we talk about "witness prep"? Some thoughts from in-house columnist Mark Herrmann.
The huge range of both cases and lawyer competence is remarkably broad.
When I write the words “witness prep,” some of you are thinking: “That’s essentially a five-minute process. I meet with the witness in the hallway just before the deposition, tell him that he should answer the questions honestly, and then see how he does.”
Others of you are thinking that witness prep is actually a half-hour process: You meet with the witness at about 9:30 to prepare for a 10 a.m. depo. You explain to the witness what the case is about. You tell him a couple of subjects you think opposing counsel will cover, and you show the witness a document or two. You’re set.
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But the big firm lawyers among you who handle only cases worth millions don’t believe that the preceding two paragraphs are true: “No one prepares witnesses like that! That would be malpractice!”
These folks assemble (or have assembled on their behalf) witness binders that contain all of the documents that mention the witness’s name. These lawyers then distill those binders down into more manageable witness books, which contain only the key documents likely to prompt deposition questions. These lawyers then schedule multiple meetings with the witness, because deposition preparation is an iterative process. Over the course of time, the witness learns the contours of the case and the lawyer learns more about the witness’s knowledge. After two (or three, or four, or more) day-long prep sessions, the lawyer has spent a great deal of time doing mock cross-examination of the witness. You (or one of your colleagues) plays the role of opposing counsel, asking the witness the very hardest questions that you can devise, and doing your best to make the witness squirm. After torturing the sad sack, you then discuss with the witness how better to phrase answers so that they remain truthful but cause less dyspepsia.
Remarkably, some folks just read my last paragraph and are thinking that’s how they prepare witnesses — and are entirely wrong. I have personally seen a witness prep session where the partner running the prep has never reviewed the witness books. The partner meets with the witness at 9:30 a.m. to start a day’s prep. The witness books arrive by Fed Ex at 10:30. The partner never bothers to open the Fed Ex box, because he’s utterly unfamiliar with the contents. The prep session ends at 5, and the partner ships the unopened boxes back to the office. The deposition then starts the next day.
Protip: That’s not effective witness prep.
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I’ve also watched folks prepare witnesses without having considered what questions opposing counsel might actually ask. These lawyers know that they’re supposed to conduct mock cross-examination, so they conduct an impressively aggressively mock cross of the witness. Raising their voices in anger and snarling, they badger:
“Is that document in fact dated June 9?”
and
“Are you absolutely certain of that date? That’s a lie, isn’t it?”
Protip: That’s not effective witness prep.
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All of this, of course, is just preparation for giving deposition testimony. Preparation for trial is quite different.
Lawyers typically tell witnesses before a deposition to give the shortest possible truthful answer to each question. But lawyers typically tell witnesses before a trial to use the “newspaper headline” approach to answering questions on cross-examination: “Make your key point first. Then, follow up with details. That way, if you get cut off before you’ve finished answering, the jury has at least heard the important thing.”
By the time the witness takes the stand at trial, the lawyer feels like he’s watching his kid play at her first piano recital. He’s sitting at counsel table, nervously hoping that the student doesn’t screw up.
But all of those types of witness preparation, good or bad, are uniquely American.
In most countries, depositions are unheard of. Documents may be disclosed between the parties as part of the pretrial process, but witnesses don’t give oral testimony before trial.
Even in those countries, the words “witness prep” before trial have very different meanings. In some places — typically countries in which judges, rather than lawyers, question witnesses — witness preparation is completely forbidden.
Really.
You cannot discuss the case with the witness before he or she takes the stand. You cannot show the witness documents in advance. And you worry about even phoning the witness to explain that the courthouse is on Main Street and the witness should arrive at 9 — for fear that you’ll be accused of witness tampering.
The idea is that a court should hear the witness’s unvarnished memory of the underlying events. The judge thus asks questions; the witness answers; and everyone learns simultaneously what the witness perceives to be the truth.
I know that sounds odd to American ears, but it’s a system that serves millions of people around the world quite nicely.
Then there’s my new home in London, where witness prep is permissible, but distinctly un-American.
In the United States, it is basically malpractice not to conduct mock cross-examination of your witness before trial. Mock cross is considered to be the only effective way to prepare the witness and toughen him up for battle.
In England, it violates the rules of legal ethics to do a mock cross of your witness. Lawyers are forbidden from assuming the role of opposing counsel and questioning their witnesses. (I assume mock cross is perceived as trying to improperly influence the witness’s testimony.)
In England, you’re permitted to interview your witnesses to learn their view of the facts. (And you couldn’t avoid doing this, because in civil cases all direct testimony is presented in the form of written statements.) You’re permitted to ask the witness’s reaction to other testimony given in the case. And you’re allowed to send your witness to “witness school,” where the witness will be given a fictional script and then be cross-examined (and videotaped) about the fictitious case, to help the witness learn how to present herself in court. But none of the questions posed at witness school can have anything to do with your actual lawsuit.
When the witness takes the stand in London, you’re not watching your kid at a piano recital. You’re more an interested observer, curious to see how the person will do (and hoping for the best). When the witness screws up, your barrister — who spent only a very few minutes with the witness before trial, because the solicitors prepared the witness statements — simply shrugs her shoulders and smiles: “Well, you know — that’s how witnesses are.”
What’s my point?
Damned if I know.
There are many different legal systems in the world, and people survive quite nicely in most of them. Don’t instinctively believe that your system is the best.
And, even within your own legal system, remember that you speak with your mouth, but others hear with their ears. Even when you think you’re communicating with someone else — “I’d like you to prepare this witness” — the listener may be envisioning something quite different from what you have in mind.
Mark Herrmann is the Chief Counsel – Litigation and Global Chief Compliance Officer at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at [email protected].
