Gillian Drake
Trial Briefs
Taking Witness Preparation to the Next Step: Developing your Client into an Excellent Witness

As a trial consultant who specializes in witness preparation, over the years I have answered calls from lawyers asking me to "fix their witness." Once, a frustrated lawyer called and said he needed help with his "stupid client" who couldn't "get it" after they went over the same material five times. Sometime ago, we worked with a plaintiff whose attorney worried that the jury was going to hate her as a person. Recently, a lawyer laughingly asked me if I could give a "lobotomy to my crazy client." It won't surprise you to learn that the witnesses didn't turn out to be "stupid," "hateful" or "crazy." Each one was interesting and capable; the "stupid" one learned things in a non-linear way, the "hateful" woman wouldn't let her guard down with men, and the "lobotomy" client was overwhelmed by her fears. We did not help turn around these individuals by solving their personality problems. Instead, with careful assessing, digging below the surface and then building on the client's strengths, we were able to help the attorney make them likable, reliable and credible.

I often find that lawyers see witnesses as problems to be corrected, disasters to be avoided, or obstacles in their way to an otherwise well laid out case. The natural reaction to seeing something broken is to try to repair it --" if we can just fix his personality problems and teach him the case as I see it, then at least he won't damage the case."

Unfortunately, this means that the typical witness preparation is a sea of negative suggestions:

"You'll have to change that dress/tie/suit/shoes! "

"Don't answer any question you don't understand"

"Don't jump to answer"

"Don't get trapped into answering in just no's or yes"

"Don't go back to your old testimony"

"Whatever you do, don't say ___________!"

"Just take the weekend off and try not to think about it."

What is wrong with this? There are two several problems with this "negative" approach to witnesses. First, it is much easier for a witness to act on positive goals rather than negative ones. Plus, you can never take away negative behavior without replacing it, preferably with positive behavior. Also when armed with a list of don'ts witnesses tend to remember just those don'ts and do them -- one after another. DonÕt bring out the negative in a person's personality and focuses the witness on how badly he/she is doing. Finally, witnesses cannot be treated as eyesore buildings that need to be demolished or given a new facade. They should be regarded as 'perfect' structures who need a little remodeling or shaping to bring out their structural beauty.

MY GENERAL APPROACH:

I think of the client as someone I need to develop into a witness. I know that all persons (except maybe psychopaths) have a lovable side -- it is the witnesses-part that tends t o bring out the worst in someone. Testifying in court or in a deposition are the worst forms of public speaking -- all the anxiety of being judged in public but with far more restrictions and chances for embarrassment. It is an ugly, humiliating, annoying, sometimes infuriating process.

It is important to recognize the difference between what constitutes a good witness from what is good about this person who will be my witness.

A good witness to the jury is one who reveals self and makes sense. A jury wants to see a person on the stand who speaks from the heart, is relaxed, seems self-confident in what she says, and where what she say matches who she says she is. A good 'jury witness' is one whom the jurors can follow and understand, and whose testimony furthers the overall trial story. A good witness for a lawyer repeats what has been practiced and agreed upon in the office, makes the key points for the record, and avoids backing down upon cross-examination.

I find if you work on preparing the person first - the juror's witness - then the actual witness preparation becomes easy. We attempt to find where the client is at his most comfortable and engaged in the world outside of the litigation process and, oftentimes, outside of his work. Then, we identify those parts of the clientÕs personality which are most attractive. Together, we use them to build the foundation for the performance aspect of the testimony.

Methodology:

The first step is a careful assessment of the person. Next, you talk very personally and find out the person's 'witness secret' (there is inevitably something they fear in this process). Then, you get him to tell his story and help make himself the hero of his own story. After that you can teach him the case from a strategic point-of-view -- arming him with personal as well as legal themes. Finally we get to the basics: explaining the relationships in the courtroom, giving him an image for the jury, talking about what to wear and giving him some exercises to deal with his anxiety. The last step is to apply what you and the client have learned to the case and practice in mock examination sessions.

Assessment:

The key to witness development is making a thorough, accurate assessment of the prospective witnesses. You need to asses their personality, their physicality, emotional range, communication skill, social skills, etc. before you begin to work on the case. I look for any opportunity to observe clients -- chit-chatting with staff, the initial hellos around the room with the lawyers, engaging them in casual conversation, and watching them as they switch gears and begin to get to work. I also make time to engage in a personal conversation about their background. And I always watch them carefully in the mock examinations.

Without being a certified psychologist, you can make an adequate assessment of key, useful personality traits. What you are looking for first and foremost are the client's strengths; the process of litigation has already brought out their weaknesses. I pay particular attention to the client's personality, physical attributes, communication skills, and social factors. With regard to personality, I might look for whether the person is careful or spontaneous, reactive or initiating, introverted or extroverted, controlling or passive, and so forth.

With the physical attributes, perhaps I will note if the person is stiff limbed or loose, sinks in their seat or sits forward ready for action. I look at their areas of physical tension, listen to their voice, note their accent, and observe their eye contact. Communication skills also are critical. I observe whether the prospective witnesses are loquacious or taciturn, direct or indirect, logical or emotive, etc. I try to figure out whether they are good teachers, visualizers, opiners, or gossips.

Important social factors might include education, family background, marital status, birth order of siblings, avocations, birthplace, religion.

I write down my findings - trying hard not to judge the client based on what I am like or personally prefer. You can work with almost any panoply of characteristics to produce a helpful profile, but you have to be impartial. (A way to keep out of your own way here is to have had a personality assessment of yourself done at some time. The Myers-Briggs test is a terrific way to begin to see yourself in a systematic way. It is not a psychological test but a personality survey or accounting. It will help you see your witnesses and your juries in a new way.) Place a star next to the qualities that are the client's obvious strengths that might be useful to him or her as a witness. Knowing what they do best, you can model the direct examination to highlight those qualities.

Another thing I look for in this initial assessment is for a change in behavior when the conversation changes from casual and friendly to work and performance. Note the behavioral and physical changes. (You can then identify the difficult moments for the witness as it is happening and coach the witness through it.) Your goal is to isolate those positive traits in the relaxed mode and transfer them to the work mode. The jury (and opposing lawyer in deposition) is watching for the same things when the testimony gets tough and uses any change in behavior to evaluate truthfulness.

THE SECRET FEAR:

Every witness I have ever worked with had some inner unexpressed anxiety that the litigation process has brought close to the surface. It is the source of why they can't listen in the prep session, or why they can't remember what you just worked on. It is usually the source of those 'character flaws.'

Sometimes finding the secret is easy -- you need only ask some witnesses how they are feeling about the trial process. But for others, it may not be so simple. I had a client once who was obese and unattractive, and his fear was going up on the stand and having all those people only see his size and nothing else. It made it impossible for him to concentrate until this 'secret' was revealed and dealt with.

Another client was an executive who had had an affair with a co-worker who was also testifying in the case. He was terrified, ashamed and filled with remorse because he had never told his wife -- nor his lawyer. But until he confessed to someone, the work was fruitless. We worked with a foreign-born doctor who was mortified by the legal process because back in his home country --only criminals go to court, never doctors. In a complex civil case, a whole team of engineers were skeptical of testifying because they feared that company was using them as sacrificial lambs.

The highly competitive female witness who never put her guard down in front of men was despondent that there was no future for her after the trial - win or lose. She had never had a time in her life without a goal to pursue and the coming trial made her lack of plans physically painful.

After unearthing the secret, the client is more open to the substantive process, more focused on the goals, and emotional more committed to doing it right. They may even become your best witness.

Make them the heroes of their own story:
Whether we are prepping for a deposition or trial, we let witnesses tell their stories in an unbroken narrative. Bringing out a story in question and answer format is a legal skill one works on in law school. However, it is very difficult intellectually for a regular person. Keeping your story going in a straight line during a deposition or under cross-examination is very hard for a non-professional witness.

Therefore, the more the witness practices telling his/her story in short form (under 5 minutes), the better. But the key here is that the story needs to be from your client's perspective as if he/she had a camera on her/his shoulder. They need not add detail that refutes (or answers) a claim in the case, but add only those details that furthers the witnessÕ story in a positive fashion.

We worked with an engineer who had been on the original team which designed and produced a turbine for a power plant. He had spent most of his career working on this machine. Since he was an engineer, he could only see the problems that needed to be fixed in the engine and his story sounded as if the other side had written it. After a little work, it was clear that he designed the prototype of an engine that became the industry standard for the next thirty years. With the new perspective on his own story, he began seeing the problems with the engine more as necessary developmental flaws that needed adjusting. He was able to stand up to cross -examination with pride and still answer with precision.

Personal themes:

The best way to withstand cross-examination is to arm your witness with a few rock solid personal themes. The personal theme (which is related to the overall trial theme) is the 'spine' of the witness. It gives them a central positive core from which all answers are true. One way to uncover a personal theme is paring down the 'hero story' until it is only one sentence long. "This is a case about how one brave soul stood up to some evil, vindictive Federal agency employees and never backed down until they were discovered." "This is the story of a Russian Jewish immigrant who just worked very hard and kept her nose out of everyone's business and is getting punished for it now."

Sometimes, I ask my clients to write down three "I" statements about themselves or the case...things that they hold absolutely true-- not facts so much as beliefs, core values, or issues. For example, a client who has been hurt in an accident and is being accused of malingering might write:

1. I pride myself on my drive to work and be productive.

2. I am a family man first and foremost.

3. I pride myself on my stoicness. These are all statements that go to the heart of the jury issues in the case -- e.g. is he a slackard?

4. is he out for himself? Is he a complainer?

RELATIONSHIPS IN THE COURTROOM:

One way to make someone comfortable in new, off putting circumstances is to put them in relationship to the people around them. Just think of walking into a cocktail party -- it feels odd until you see the first person you know or until you meet someone who is sympatico. Then the party seems like a good one. With witnesses, itÕs the same only more intense. Everything about testifying is foreign. It's important to not just get the witness to recognize her surroundings but to "get into relationship" with all the leading players in the courtroom.

I don't simply draw a diagram of the actual courtroom detailing who will be where. We talk about the role each person or group of persons has to the witness. For instance, if the defense attorney was able to ruffle your witness at deposition, we try to redefine how your witness might relate to see the lawyer in court. Instead of seeing the defense attorney as a self-righteous bully, ask the witness to see him as a misguided soul who doesn't really understand what the witness went through. After all, he wasn't there, and he is just a lawyer. We define each important relationship in the courtroom in this way -- always replacing negative relationships with positive ones.

It is the relationship to the jury that is crucial. We find an image for the jury. Somewhere in your client's life, she has spoken to a large group of people and swayed them, or she has been a teacher or has been in a leadership position, or she has clients or customers. It is in these situations that your client is at her most persuasive or charming self and it is the image of those people or that group that you ask your client to transfer to the faces of the jury.

BASICS:

At some point the rules and regulations of testifying are explained. Depositions, trial testimony, congressional testimony have unique rules but most lawyers have a handy handout for their clients to read. Some attorneys like an exhaustive list, some like to give just a few comprehensive points that cover everything. Some lists are organized into parts: purpose of the deposition; witnesses objective; answering techniques, lawyer tricks, etc. These lists are useful only if you actually go over them with the witness and then apply them in practice.

So the next basic step is practice. Mock testimony is essential, and applying the rules and regulations after each run-through is the best. Build the rules up as you try to build up the client into a good witness. Also, apply the positive themes, the positive character attributes, the positive voice and demeanor. If you have build the foundation solidly, the practice and the honing of the text should go quickly.

COSMETICS:

Appearance is often the first thing I am asked to comment upon in witness preparation session. However, it is usually the last thing I discuss. "What should I wear?" is a question I cannot answer until after I know the case, its themes, the jury issues and most important, the witness. The point of costuming is to bring out a side of the person that is either most important to see, or, might not come out during the testimony. Costuming is a chance to bolster a particular character trait or to answer a jury question that may never really get asked in court. "Is she an appealing wife?" "Does he like or hate women?" "How warm and caring is he?" "Does this man have a life outside of his work?" "Is it really in her character to do what she is accused of doing?"

Decide whether it is important for the jury to see this woman's competence? Or her softer, classically feminine side? Or this man's sense of humor? Or his hard-nosed business side? These are the soft issues that clothes, make-up, accessories, hair color can shed sub-textual light upon.

NERVES:

If after knowing the case better, being armed with personal themes, allowing the best part of their personality to come forth and putting them in relationship with the cast of characters in the courtroom ...if after all that, the client is still nervous, then you give them a relaxation routine designed just for them that they can easily do daily until the day of the deposition or trial. You want to deal with the nerves in a physical way. When your witness gets into the courtroom, their head is going to be filled with the task at hand -- they should not be distracted by psychological tactics for the nerves. Something simple, physical and unobtrusive - like breathing, or stretching their backbone. If they can cue their body through their breathing or tighten and relaxing certain muscles, then their anxiety has a chance of dissipating.

Each client's anxiety manifests itself uniquely and tolerates the solution differently. Some are very formal and want only the least obvious, calisthenic exercises -- sitting in a chair imaging themselves in their favorite spot on earth. Others surprise me with their willingness and I have them lying on the ground, breathing rhythmically and chanting a mantra. You can have them walk their dog every day at the same time and think about their personal themes. If they jog, have them regulate their breathing. But always it is with the purpose of relaxing and energizing them in relation to the case. They should start out their at-home preparation for the trial only after a relaxation exercise. That way, they begin with the positive part of their personalities, rather than leading with the negative.

When they get to the courtroom or the deposition, they can remind their bodies by hooking into the deep breathing for a moment or imaging that beach in Hawaii. They send their bodies concrete physical signs to relax even in the face of tension.

SUMMARY:

All lawyers want their witnesses to be credible, likable and reliable. You can't assume that every client or fact witness that you deal with is either a natural or hopeless. Obviously, there are communication techniques which need to be developed, and organizational skills and substantive issues which need to be refreshed, in every witness. However, like any other public speaking engagement (which is number one on most people's top ten personal fear lists), there are also the more personal, 'softer' issues that need some attention: fear of being judged, not believed, not liked, not useful or adequate. Think of the process of witness preparation as simply helping persons, in albeit an unnatural environment, to be their best possible selves and to tell their story in their own words.