Working with witnesses in stages will ensure that they are more prepared and able to assist your client.

J. Lindsey Short Jr.
Short Carter & Morris, L.L.P. — Texas

When preparing your lay witness, I recommend that you do not have the client advise the potential witness about what the witness will be testifying. Simply have the client contact the witness to advise that a member of the law firm will contact the witness to gather information about the historical facts involving the parties and their child or children. The client should have previously provided the firm with a list of potential witnesses as well as factors and circumstances regarding the witness’ knowledge.

The first contact from the law office should be ideally made by a legal assistant or associate attorney who presents the attitude and concept of simply trying to gather information about the case and not of trying to have the witness say anything bad about anyone. This approach is designed to keep the witness from crystallizing an opinion that may be detrimental to your client or for the witness to decide against becoming involved. The interview should be a very general discussion of the facts of the case with an emphasis on events and circumstances about which the witness has first-hand knowledge. At that time, an arrangement and agreement should be made by the legal assistant to Contact the witness again.

The second contact should be made a couple of weeks later. At that time, the legal assistant or associate attorney should have reviewed with the client all the events and circumstances involving the particular witness and the witness’s relationship with the child and the client, and an effort should be made to direct the discussion with the witness toward those areas that will aid your client in the presentation of evidence to the trier of fact. The legal assistant should remind the potential witness about those events that have occurred and that the witness has observed relating to the child. Sayings, impressions, or descriptions concerning events in the witness’s own words and unique to that witness that will be appealing to the fact finder should be written down by the legal assistant so they can be used at trial.

Because your case should involve predominantly the presentation of the positive parenting skills and the relationship between your client and the child, the legal assistant should again try to generally avoid truly negative statements about the other parent. Of course, if the witness feels compelled to mention these factors, so much the better. Obviously, because your firm is calling the witness for a second time, the potential witness should begin to feel somewhat more at ease when discussing the various situations. By this time, you probably have decided that the witness will be one of the people you would likely use at the time of the trial. The witness should be further advised at this time regarding generally when the trial is scheduled and how helpful for the best interest of the child the testimony of that particular witness would be. The witness should be assured that you respect his or her privacy and his or her time commitments and that every effort will be made to keep his or her time away from home and work to a minimum.

Finally, within the ten days before the date of trial, a third contact should be made by the firm with the witness. At this time, the witness should be thoroughly familiar with speaking with members of the firm and some degree of comfort should have been achieved. A rapport should be developing. Specific facts, a reminder of sayings, impressions, and expressions, as well as a discussion of cross-examination, should be held with the witness at this time. The potential witness should be taught what formal objections by a lawyer are, who makes them, and what the witness’s response should be, among other things. Now is also the time to deal with the details of proper dress for court, how to get to the courthouse, parking, or other problems that could be encountered.

Working slowly and carefully, in stages, with witnesses will ensure that they are more prepared, more at ease, and more willing to assist your client with the presentation of the facts of the case.


For over 40 years, founding partner of Short Carter & Morris, L.L.P., J. Lindsey Short, Jr. has devoted his considerable legal talents and skills to the practice of family law. He is still considered by many to be one of Houston’s top child custody attorneys, although the majority of his practice is now devoted to complex marital property issues. He has represented several high profile cases over the years and has appeared both on satellite and national television programs. 

This article first appeared in 101+ Practical Solutions for the Family Lawyer. Published by the American Bar Association. Reprinted with Permission.