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An unprepared witness is a lost witness

When someone is called as a witness in any kind of legal matter, it’s usually a new and disturbing experience.

Still, too few people — lawyers included — understand just how completely new and different it really is. It’s not a conversation. It doesn’t look like one or feel like one, so no one should expect it to be like one.

Communicating effectively in a question-and-answer format is an extraordinarily unnatural and difficult process. A witness must learn a new and strange language and a discipline that’s different than anything we use in our normal lives.

I was fortunate enough to learn this lesson early in my legal career. Just out of law school and still trying to find my way around the labyrinthine hallways of the U.S. Department of Justice in Washington, I was assigned to the team prosecuting Bert Lance, the former federal budget director and lifelong friend of then-President Jimmy Carter.

It was an opportunity for a new lawyer to learn many lessons, including one from the testimony of President Carter’s mother, “Miss Lillian.”

The defense made a strategic error (one of few in a well-tried case). It presented the judge with a list of 50-odd people it intended to call as character witnesses for Lance.

Character testimony has largely faded from trial practice today, but the idea was fairly simple; in essence: “Bert’s a good guy; he would not have done this terrible thing.”

Since such testimony has questionable value, it can be severely restricted under federal law. Facing the specter of weeks of such testimony, the judge used his authority to do just that: The defense could ask character witnesses only a handful of narrow, legalistic questions.

The defense went forward and called a few of these witnesses, including Miss Lillian. Knowing that the questions would be mumbo-jumbo to someone with no legal experience, preparation was essential and relatively easy:

“Miss Lillian, the judge has limited us to these few crazy legal questions. I don’t understand them any more than you do, so let’s talk through them carefully. But if at any point you’re stuck, just talk about Bert. Tell us why you think he’s such a good, honest person, and give us a few examples that make you believe in him!”

What could the prosecution have done? Tried to interrupt the sainted elderly mother of the sitting president in her beloved home state? That would have been an even better show for the defense than the testimony itself. No, we would have sat there and tried to act as if we didn’t care, while she talked on, in her own words.

But whether it was lack of time or opportunity, or another reason, Miss Lillian apparently had not been prepared. She came into the courtroom looking frail, bewildered and out of place, and it never got much better. She was clearly put off by the legalistic questions, gave short, unclear answers, and it was over.

This extraordinary witness was on the stand for only two and a half minutes, according to one reporter. As she left the courtroom, she looked over at Lance and said, “I wish it could have been longer.”

I assume that if you sat on the front porch with Miss Lillian over a glass of iced tea and asked her to tell you about Bert Lance, it would have been longer. She would have had lots to say — high praise, heartwarming stories and much more.

Instead, the questions were asked in a strange environment, with an artificial formality and an unnatural language. Without adequate preparation, an ideal witness was lost. It was not a question of substance; she presumably had relevant testimony. It was a problem of process. She had not been prepared to communicate in this strange new world.

In every walk of life, at every level of education, profession or experience, we are all Miss Lillian. We know what we know (or think we do), but if we can’t communicate it effectively, we’re lost.

Fortunately, it’s possible for anyone to learn to communicate in this “question-and-answer” language. However, it takes time, effort and the assistance of a trained guide.

Preparation is not something to be embarrassed or defensive about. Giving testimony or a statement of any kind is an important and difficult process. You won’t be doing your job if you do not prepare your witness extensively.

More important, a witness who does not take the process seriously enough to prepare carefully isn’t doing his or her job either.

It’s critical for witnesses to understand that good preparation is not some kind of improper cover-up. It’s not someone telling them what to say or making up a story. On the contrary, the point is to make witnesses’ statements more truthful by helping them to be more thoughtful, careful and precise.

There’s no magic to preparation, no wand a lawyer can wave to turn a client into “SuperWitness.” All you can do is work together to try to develop some of the understanding and discipline that will ultimately make the client’s experience as a witness much easier and more successful.

Preparing witnesses is one of the most difficult and important challenges many lawyers face, yet too many take it for granted and forget how unnatural and incomprehensible the process can be for a witness.

Daniel Small is a partner in the Boston and Miami offices of Holland & Knight.

A former federal prosecutor, he is the author of the American Bar Association’s “Preparing Witnesses” (3d Edition, 2009).

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