Civil Litigation Legal Topics Litigation Strategy Trial Strategy

10 Things to Cover with Your Witness Before Trial

164142653There are some pretrial tasks you shouldn’t delegate. It’s critical that trial counsel see and hear each witness before trial begins and take the time to carefully prepare the witness to testify.

Testifying at trial can be a very intimidating experience for many people, but careful preparation can lessen the fear factor and make it much more likely that you’ll get effective testimony from the witness.

With so much riding on witness testimony, it makes good sense to make time to meet with your witness before trial and do these 10 things:

  1. Review the parts of the trial story to which the witness’s testimony is supposed to relate (e.g., “We want you to tell the jury what you know about who made this broken bolt”).
  2. Remind the witness of the purpose of the testimony (e.g., “There is an argument about who made the bolt, and the jury needs to hear what you know about that”).
  3. Tell the witness how his or her testimony “fits” with the entire trial story (e.g., “Our client says he was injured when this bolt broke and some machinery fell on him; the other side says it’s not their bolt and it didn’t cause the accident”).
  4. Ask the witness to bring any physical evidence that he or she will identify or use on the stand (e.g., business records or demonstrative evidence) and familiarize the witness with the procedures for using them, your introducing them into evidence, and his or her testifying about them.
  5. Refresh the witness’s recollection of facts relating to the anticipated testimony, including any contrary facts (in expected testimony or existing documents) that may be raised in cross-examination.
  6. Review any anticipated evidentiary problems and what the witness may be expected to do to resolve them (e.g., “They may object to our introducing this bolt as evidence on the ground that there is no foundation. I will then ask you to describe how the bolt came into your possession so that the judge and jury will know that you took it from the accident wreckage and have had it ever since”).
  7. Review any credibility questions that may affect the witness, including behavior on the stand and appropriate attire. If the witness has special needs (e.g., medical problems, must have a cigarette every hour) resolve those before trial.
  8. Remind the witness of the importance of the oath to tell the truth. The witness should be told that, if the truth is “I don’t know” or “I don’t remember,” that is the correct answer rather than guessing.
  9. Let the witness know that opposing counsel sometimes asks witnesses whether they have discussed their testimony with the attorney calling them. Tell the witnesses that it’s ok for witnesses to talk to an attorney before testifying and to respond truthfully if asked by opposing counsel.
  10. Tell the witness to listen to the entire question before beginning to answer, and to wait for the judge’s ruling if there is an objection to the question.

Don’t forget the role of attorney-client privilege in these witness meetings. If the witness is your client, discuss how the attorney-client privilege may apply to his or her testimony. But if the witness isn’t your client, you’ll need to confirm that there’s no legal prohibition against your discussions because

  • the witness is represented by an attorney, or
  • a privilege is held by another person that bars the witness from speaking with you about any privileged matters.

If you meet with a nonclient witness, explain that opposing counsel may ask him or her about the preparatory meeting. Keep in mind there’s always a risk that what you say may be repeated, or misstated, to the trier of fact. It’s often a good idea to either have someone else witness the discussion or have the meeting recorded.

Want more practical tips on witness preparation? Turn to CEB’s Effective Introduction of Evidence in California, chapter 2, and California Trial Practice: Civil Procedure During Trial, chapter 5.

Related CEB blog posts:

© The Regents of the University of California, 2013. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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