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Preparing for Your First Civil Trial, Part Six: Witness Preparation

By Jennifer L. Saulino, Maureen R. Knight, and LaQuita S. Wornor

It has been said that cases are won or lost in witness preparation. We all know what a daunting task it is to get most witnesses to comply with simple deposition preparation instructions—now we have to add in all of the components that come with testifying before a jury.  No pressure.

Witness Binders
Both complex and routine litigation can involve numerous witnesses in a case, including lay and expert witnesses.  We recommend creating witness kits/binders to organize all of your trial witness information. The following are items you should consider including in most witness binders:

  • a flagged and indexed deposition transcript that includes any corrections from the errata sheet marked in text;
  • deposition exhibits used with that witness;
  • a table of relevant information about the witness and/or a timeline of the witness’s involvement in your case;
  • contact information and scheduling information about the witness (where the witness will be at all times and how he or she may be contacted);
  • any discovery responses related to the witness;
  • any documents to be identified at trial by the witness;
  • all exhibits known to have been received by the witness (within reason);
  • deposition excerpts of other witnesses that reference this witness;
  • previous affidavits or statements provided by the witness in this or other litigation; and
  • notes/outlines regarding anticipated testimony, including potential cross-examination.

If the witness is an expert, include a copy of his or her curriculum vitae, copies of prior trial testimony, any written reports on similar topics, and relevant published writings. The witness binder should contain all of the documents you will need to create an outline for your examination or cross-examination. As you develop that outline, it too should be included.

Witness Preparation
As for the preparation itself, there are numerous effective ways to prepare a witness for trial—analyzing all or even most of them would require an entire book. Nevertheless, we have included some techniques we found very valuable. 

Videotaping of preparation sessions can be invaluable. In one of our cases, for example, during a mock direct, one witness who was ordinarily extremely engaging and likeable came across as cold and, well, not very likeable. Out of the blue, someone on the trial team asked the witness what she was most proud of in her life. As she spoke about her children, her entire demeanor changed, and the incredibly likeable woman they knew resurfaced. The trial team played the tape back for her so that she could see for herself the difference in her appearance. It worked. At trial, the witness was less robotic and more natural, and the jury found her compelling.

And, in the two-birds-with-one-stone category, try to have a partner sit in when you perform your mock direct of your witnesses. The partner can not only play the role of opposing counsel, he or she can also take notes on your own performance. This is your first trial, after all, so the witness is not the only one who will be making a debut! All good performers benefit from a rehearsal. As another example, in one of our cases, one of us conducted a session of her direct examinations in front of a mock jury of summer associates and administrative staff members who were unfamiliar with the case and the witnesses. After the mock sessions, she noticed a significant change (for the good) in her witnesses.

Another of us prepared for a trial in which most of the witnesses will be opposing witnesses. The junior associates working with her on the case, who knew all of the evidence, each performed as a few of the witnesses during a series of mock cross-examination sessions. The team found this to be an effective way to anticipate potential answers the team had not previously contemplated.

Previously: "Where and How to Begin," "Depositions," "Meeting the Judge," "The Task List and the Trial Outline," and "Preparing For Your First Civil Trial, Part Five: The Court and the Judge"

Keywords: Litigation, trial preparation, witnesses

Jennifer L. Saulino is with Covington & Burling LLP, Maureen R. Knight is with Constangy Brooks & Smitth LLP, and LaQuita S. Wornor is with Frost Brown Todd LLC.

  • November 11, 2009 – A SIMPLE TOOL There are many strategies to use to improve witness performance. One that often works with witnesses is to ask them what type of impression they want to have on the jury. How do you want the jurors to think about your testimony? As you proceed through preparation, you or a colleague provide feedback indicating how jurors might react to the witnesses demeanor or attitude. Is the impression consistent with their wish or goal? Remind them of the impression they would like to make. You are using their wish or goal to help them improve their presentation..


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