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5 Steps to Fixing the Facts in Your Client’s Mind

176421487If properly prepared, your testifying client will be relaxed, confident, natural—and a master of pertinent facts. But no one can behave naturally on the stand while trying to keep in mind 50 different facts. When you’re preparing your client to testify, your job is to narrow the case to a few important facts and then fix them in your client’s mind.

Here are 5 steps to making sure your client nails down the major events:

  1. Master 5 questions and answers. Most cases can be reduced to a limited number of key questions. If possible, they shouldn’t exceed five. Your client should be able to answer the five central questions firmly and without qualifiers.
  2. Revisit key locations. Visit the scene of important events with your client; opposing counsel may well visit the site before trial and your client will be far better prepared to respond to a knowledgeable cross-examination if he or she has a refreshed recollection.
  3. Relive emotional responses. Prepare your client to relive important emotions when on the stand. For example, if it’s a wrongful discharge case, have him or her visualize the room where the firing took place and the facial expressions and gestures of the employee delivering the news, as well as reliving his or her emotions on receiving the news.
  4. Review depositions. Several weeks before the first preparation session, give your client his or her deposition, and the depositions of those agreeing with or contradicting your client’s testimony. Mark the most important sections of those depositions and go over them several times with your client. Give any deposition summaries to your client to continue reviewing.
  5. Give a final exam. Finally, the evening before your client testifies, check again with the client to see if he or she has firm mastery of the five important questions.

Remind your client that it’s no sin to forget details. The confession “I don’t know” sits well with most jurors most of the time. Tell your client to qualify answers (“probably,” “I believe”) as necessary, as long as the answers aren’t central to the case. But forgetting isn’t an option when it comes to the major events. For example, a criminal defendant, asked whether or not he stabbed his wife 85 times, shouldn’t answer “probably not.”

These steps to fixing facts in your client’s mind are among the many practical strategies you’ll learn in CEB’s Effective Direct and Cross-Examination Book, chapter 6.  Let us know how these steps work for you and whether you’ve got other tips for fixing the facts in your client’s mind.

Related CEB blog posts:

© The Regents of the University of California, 2014. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

5 Responses

  1. My concern about this article is that serves to reinforce the misperception that a lawyer’s job in witness preparation is to focus on the *facts* the witness is supposed to convey, and that testimony — and trials — are primarily won by introducing the right *facts* into the record. That is incorrect. Trials are not won or lost on the basis of facts, and witnesses are not good or bad solely on the basis of correct recitation of facts. This is a lawyer-centric view of the world, not juror-centric.

    A lousy or even mediocre witness can recite the correct facts all day long and our side can still lose the case.

    The main goal of witness preparation should be to get your witness to give his or her best TESTIMONY. Only one ingredient of that are the facts. That’s the least important in actuality, yet it’s all that I see most lawyers focus on. I see most lawyers give the witness the depo transcript. I see most lawyers meet the witness in a conference room before trial, when the lawyer correctly and unavoidably has dozens of other things on his or her mind. So pressed for time and already pre-disposed to think in Aristotleian terms about facts + logic = win!, the lawyer dives into the facts with the witness.

    Familiar. But ineffective. Except for professional witnesses with lots of courtroom experience, most witnesses have a lot of anxiety, and *fear is the Number One barrier to good performance in court/deposition for most inexperienced witnesses*! And it is that fear that is by far the most important thing for counsel & consultants to deal with in witness prep… not mere drilling of the facts.

    Indeed, drilling the facts before dealing with your witness’s emotional state usually makes the anxiety WORSE– “ohmygod ohymygod, what if I can’t remember all these facts, what if I say one of these facts wrong, this lawyer sure seems to think these facts are crucial so what if I screw it up,” and so on. Lawyers aren’t really equipped to deal with the emotional side of their witnesses anyway, and in their own anxious pre-trial state, are not really thinking about anyone else’s emotional state. To the benefit of neither the lawyer nor the witness– nor the client.

    I would say that the lawyer’s interests in the witness SHOULD be these, in this order:
    1. W’s emotional well-being, lowered anxiety
    2. W understands the STORY they are being asked to tell, not mere facts
    3. W understands the WORDS and METAPHORS they should use to support that story
    4. Facts.

    My suspicion is that most lawyers’ ACTUAL interests, by our logical-linguistic nature, are these:
    1. Facts
    2. Facts
    3. Facts
    4. Phrases that sound good to US.

  2. Facts tell and stories sell and I would suggest, based upon my 28 years of trying cases, that a combination of all the above is the right way to go.

    As Julie correctly points out, in most cases a witness must know the key facts on the issues she is testifying to. Julie stresses preparation and emphasizes in #3 for the witness to be real while on the stand. All of these 5 steps require much more effort than simply “meeting a witness in a conference room before trial.”

    Having said that, Rick’s suggestions, once the above is done, will bring additional value to your case. Most lawyers don’t’ take this extra step.

    I think Rick would agree that in order for a witness to give her “best testimony” she needs to know the facts, issues, circumstances and purpose of her testimony. Being real, transparent and likeable from the witness stand while sharing all of the above is what I want from my witnesses.

    Give me a witness who builds rapport with the jury by doing ALL of the above and I’ll show you a happy trial lawyer at the end of the case.

  3. Thanks for your comments, Rich and Mitch! It really helps to flesh things out when experts weigh in on our blog posts.

  4. […] common for witnesses forget facts while testifying—often due to nerves and sometimes due to selective memory. The good news is that […]

  5. […] the facts in your client’s mind. Drive home key facts so that your client knows them well, but don’t rehearse your client so often that his or her […]

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