The witnesses are the pivot of any case—involving a factual controversy. Here are 10 case-winning witness prep tips, which can help lawyers tip the scale in their favor during a trial, and make judges separate fact from fiction.
By Brad Litchfield, Trial Lawyer
The witnesses are the pivot of any case—involving a factual controversy. Their words can change the outcome of a trial, and give direction to the court in deciding a case. I have gathered 10 case-winning witness prep tips, which can help lawyers tip scales in their favor and help judges separate fact from fiction.
Tip the Scale in Your Favor: 10 Case-Winning Witness Prep Tips
1. No Lies. No Exaggeration. All Truth
Tell witnesses to offer the shortest, most truthful answer possible, and that lies or exaggerations are regularly exposed in court. Trial judges intuitively follow the maxim, “Falsus in uno, falsus in omnibus” (false in one thing, false in everything) when he or she believes a witness has lied.
2. Answer the Question Asked
Self-serving, non-responsive answers annoy judges, destroy witness credibility, and often backfire. Experienced lawyers will move to strike and re-ask the same question, now with the judge’s full attention. Prepare witnesses to anticipate detrimental questions with appropriate damage-control responses, and remind them that you can rehabilitate during re-direct.
3. Look the Judge in the Eye
Many witnesses fail to connect with the judge. Witnesses often respond to the lawyers, mistaking them for the person who really matters in the courtroom: the judge. Credibility is best established by eye contact.
4. Control Your Emotions
Emotions often surface during family law cases. Measured emotion can help reinforce a point, but unchecked emotion almost always damages your case. A touch of righteous indignation about missed parenting time is preferable to overt anger over the same issue. A minimally emotional moment may emphasize a positive attachment, but uncontrolled tears suggest witness instability.
5. Be Positive
Judges dislike unnecessary personal attacks in court. Mudslinging or taking cheap shots sullies the witness and rarely accomplishes the goal of discrediting another party. Encourage unembellished factual statements on negative issues; allow the judge to extrapolate facts and make his or her own negative inferences.
6. The Judge Sees Everything
Caution witnesses that the trial judge notices everything and everyone in the courtroom. This includes facial responses to perceived negative statements from others, grooming, posture, respect for lawyers and the court, interactions at counsel table (including incessant whispering, shoulder tapping, or aggressive note-taking).
7. Defang the Opposing Party’s Arguments
Every witness has weaknesses. Use dry-runs with witnesses to avoid the cross examiner’s “gotcha” moment by formulating truthful responses to explain, or simply acknowledge potentially damaging testimony. For example, a witness should acknowledge prior substance abuse, show genuine remorse, and also discuss a sober date and steps taken to avoid relapse. Where the negative facts are already in evidence, confront the testimony head-on to deny or minimize.
8. Listen (and Think) Before Answering
Tell witnesses how critically important it is to listen to the question as phrased, and to take the time to respond thoughtfully. Explain the “stand your ground” concept to help them fight a cross-examiner’s re-characterization of their answers – and that they must carefully consider and acknowledge truthful statements.
9. Go with Your Horses
In high school, one coach regularly reminded me to “go with your horses” – meaning at critical moments, get the ball to the person most likely to score. In the courtroom, this means focusing relentlessly on your case theory. Repeatedly remind witnesses of the case theory and only ask the witness questions consistent with the theory, so as to avoid straying into collateral, unnecessary testimony.
10. Be the Source of Reason
Witnesses should present the judge with thoughtful, cohesive solutions and be the courtroom’s voice of reason. Judges appreciate an unbiased answer, objectively reasonable options, and problem-solving attitudes.
Brad Litchfield has practiced law in Canada and the U.S. since 1993. He has an LL.M. cum laude from Brigham Young University, and he recently completed service as the Chair of the Oregon State Bar State Professional Responsibility Board. www.eugenelaw.com.
How do you simplify your case’s “story” into one unified theme – and set it apart from all the other cases on the judge’s docket? The key is word selection.
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