7 deadly sins of witness preparation

Listen to this article

Law schools may do a good job of teaching legal principles and theory, but they often ignore the true focus of real world legal practice: the client.

Too few teach attorneys how to deal with clients, and, specifically, how to teach clients something as difficult and foreign as the process of being a witness.

The commonly accepted notion that lawyers will somehow pick up such skills along the way is dangerous nonsense. At best, it’s a setup for a long trial-and-error learning process, forcing real clients with serious problems to be the guinea pigs.

As a profession, we can do better.

Even experienced attorneys may share some common misperceptions that lead them to fail to prepare a client/witness adequately. A failure in preparation is a failure in representation. Don’t make these same mistakes.

1) “I’m too busy.”

No matter how busy you are, it’s hard to ignore a formally scheduled deposition or other appearance as a witness. Yet it’s often too easy for a lawyer to ignore the preparation stage. After all, the client usually doesn’t understand the importance of preparation, and the lawyer has other more immediate demands on his or her time.

But you’re not properly representing your client if you allow him or her to make an appearance without thorough preparation. Either find the time to work together or don’t take on the representation at all.

There are several ways that you can make the time you spend more efficient. For example, give the client the appropriate introduction memo to read in advance. Encourage your client to read it carefully before your next meeting and to write any comments or questions on it, then use it as a basis for discussion every time you meet. Use an associate or paralegal to organize documents, do an outline of the matter to serve as a base and even to conduct the practice questions. Nothing can replace the substantial time commitment required for this process.

2) “The client’s too busy.”

Many clients don’t see, or don’t want to see, how vital witness preparation is. They don’t want to take the time out of their busy lives to pay a lawyer to help them do something they don’t think they need help doing in the first place.

The lawyer must accept the obligation to push — hard — to overcome that reluctance. None of us like to push a client like that, but we’re not doing our jobs if we don’t push. The most important battle we fight for our clients is sometimes with our clients.

There are ways to work with the client to help accommodate the competing demands of preparation time and a busy schedule. Nights and weekends may be the best times.

Although preparation is best done in blocks of uninterrupted time that are several hours long, I have in some instances conducted pieces of the process during long flights, limousine rides and even international telephone calls.

3) “All witnesses are created equal.”

Part of the challenge of properly preparing witnesses is that it can’t be done in a standardized, cookie-cutter way.

A client recently told me about a prior experience in which she had to give a deposition in a discrimination case brought against her employer. Her employer’s lawyer “represented” her (with no apparent regard to the conflict issues) and as preparation merely gave her what clearly was a canned speech, having little to do with the sensitive issues in the case.

In fact, witnesses differ enormously depending on their background, personality, education, experience, profession, and involvement in the issues or events being addressed. What might be an appropriate preparation for one witness may be useless gibberish to another. You must adapt your preparation accordingly.

4) “You never know what they’ll ask.”

Attorneys sometimes limit their preparation — either intentionally or unwittingly — because they don’t know how to anticipate what a questioner will ask. They reassure their clients by telling them that such ignorance is normal.

However, the fact that you rarely know all the questions doesn’t mean you can’t anticipate and prepare for many of them. We can’t eliminate every surprise that our clients may face, but we can and should help minimize the number and severity.

There are a variety of ways that a lawyer can, in fact, anticipate what will be asked. Try the following:

* Wear their hat: Constantly challenge yourself, those working with you and even your clients to put on the other side’s hat. How would we view a set of facts if we were looking from their side? What questions would we want to ask? Brainstorm these issues with and without the client present. If resources allow it, assign someone to play that role and prepare questions accordingly.

* Use what’s out there: Whatever the nature of the process, there likely are prior transcripts, discovery or standard guides or manuals (sometimes CLE materials) that will help you to understand and anticipate at least the general outlines of the questioner’s approach. Have you fully searched the other side or the issues on the Internet?

* Use their stuff: One of the side effects of big government is that bureaucracies often develop strategies secretly in one office and disclose them publicly in another. Some agencies’ in-house manuals actually are available, such as the U.S. Department of Justice Manual published by Prentice-Hall, which includes the standard Advice of Rights for grand jury witnesses and other grand jury information.

Other agencies require you to work a little harder. For example, the Securities and Exchange Commission’s internal manual, “Guide to Taking Testimony in Investigative Proceedings,” has been made available through the Freedom of Information Act. It contains the SEC’s standard script of questions, which helps to prepare witnesses for the kind of extraordinary detail that the SEC pursues in almost every case.

* Use other lawyers: Who else has been questioned or testified in the matter? You can make lawyer-to-lawyer contacts to get file memos, transcripts or even just oral reports from counsel of what was asked of others and what might be asked of your client.

5) “Preaching, not teaching”

You can tell a client the required language for a legal document, or what forms must be filed with a particular agency or court, but you can’t tell a client how to be a witness.

That has to be taught. Doing it successfully means avoiding lecturing and preaching and instead using a variety of methods to work together toward understanding.

The key here is one of the same things that we tell clients: Listen. Invite questions, ask for feedback, ask questions and generally do whatever it takes to make sure that you understand what your client needs in the situation.

If you get on a roll talking at your client, stop to ask for questions or to see what else would help them. Real learning happens in the back-and-forth exchange.

6) “The law is the law”

As a lawyer, you spent three years of law school and the span of your career — however long it’s been — learning to speak a strange language: legalese. To help a client understand the challenges and choices he or she faces as a witness, you must relearn English.

The more legal issues that are involved in the matter or in your client’s appearance, the harder you have to try to avoid legalese. A client who’s learned the legal terms but not what they mean has learned just enough to be dangerous.

7) “Do I need to draw you a roadmap?”

Yes, you do. I am constantly amazed (and pleased, when I’m the questioner) to see witnesses who may have been prepared on the facts, and perhaps even on how to answer questions, but not on the simple mechanics of what’s going to happen.

As a result, they walk into a strange room in front of strange people and are intimidated and overwhelmed by the most basic logistics or procedures. They quickly become shaken up. Whatever preparation they did largely is lost, and they start the questioning at a severe disadvantage from which they may never recover.

There’s nothing condescending about being careful. Take the time to walk through exactly what the witness can expect. A big part of counsel’s job is to make it less strange (and, hopefully, less frightening) for the client by making it more familiar.

On some level, all lawyers know that preparation is important. But there are so many easy excuses, and clients are rarely sophisticated enough to understand what’s happening and what’s wrong. Don’t fall prey to those temptations. Find the time and effort to do it right.

Daniel Small, a partner in the Boston and Miami offices of Holland & Knight, is a former federal prosecutor. He is the author of the American Bar Association’s “Preparing Witnesses” (3rd Edition, 2009).