Client & Witness Preparation

Witness preparation is tough. It’stime consuming and often exhausting for attorneys, and even more stressful forclients or non-party witnesses who want to testify well but find themselves innew and frightening territory in taking the witness stand. This short posttalks about the importance of giving context to the client or witness during  the preparation process.

I was driving back from out of town visiting family recently and listening to an audio book titled “On the Jury Trial” by Thomas M. Melsheimer and Craig Smith. The book speaks about a lot of jury trial topics, many of which are just as relevant for trials to a judge only. One such topic was effective witness preparation. Essentially, the crux of the advice was to give your witnesses context before reviewing and rehearsing any testimony with them. By context, I mean to say the story of the case, as the lawyer sees it, and what the lawyer is seeking to establish through the particular witness’s testimony, and, why that is important.

Manylawyers jump into witness preparation by showing the witness a list ofpre-prepared questions that they anticipate asking. They spend lots of timereviewing those questions and having the witness respond, and like a blindfoldedchild swinging for the piñata, the responses are clumsy and fail to deliver thecandy. This makes for an inefficient preparation session, not to mention an expensiveone—both facts which lead to poor preparation and heightened anxiety for thewitness (who is often the client). By giving context and establishing whatimportant information needs to be established via testimony, many initial“swing and a miss” responses from the witness are avoided and a more focusedand cohesive presentation is created in less time. Lawyers would do well, moreoften, to recall that unlike us, our clients (or other witnesses), have thehappy fortune of not having spentyears wading in the unfriendly waters of the family law courtroom.

Theauthors of the book I mentioned were speaking about witness preparation incivil cases in general, certainly not being specific to family law. As saidabove, preparation can be demanding. It can take lots of time, even just toprepare your own client. Certainly, if you are taking the time to prepareadditional witnesses as well, the same is all the more true. And, what makes itharder for family lawyers is that we are in court a lot. We mediate a lot. Weare the ER surgeons of the legal world—our hearings and cases don’t involvemonths of fine tuning and preparation. Instead we often have to adapt quicklyand jump into court with only weeks’ or even days’ notice. Because of that,thorough witness preparation can be difficult, if not sometimes impossible.However, pushing excuses aside, family lawyers should spend more time and makea greater effort to prioritize making their clients, and the importantwitnesses of their case, better prepared to convey the focused testimony neededto get favorable rulings in any hearinginvolving family law issues.