Witness preparation is tough. It’s time consuming and often exhausting for attorneys, and even more stressful for clients or non-party witnesses who want to testify well but find themselves in new and frightening territory in taking the witness stand. This short post talks 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.
Many lawyers jump into witness preparation by showing the witness a list of pre-prepared questions that they anticipate asking. They spend lots of time reviewing those questions and having the witness respond, and like a blindfolded child swinging for the piñata, the responses are clumsy and fail to deliver the candy. This makes for an inefficient preparation session, not to mention an expensive one—both facts which lead to poor preparation and heightened anxiety for the witness (who is often the client). By giving context and establishing what important information needs to be established via testimony, many initial “swing and a miss” responses from the witness are avoided and a more focused and cohesive presentation is created in less time. Lawyers would do well, more often, to recall that unlike us, our clients (or other witnesses), have the happy fortune of not having spent years wading in the unfriendly waters of the family law courtroom.
The authors of the book I mentioned were speaking about witness preparation in civil cases in general, certainly not being specific to family law. As said above, preparation can be demanding. It can take lots of time, even just to prepare your own client. Certainly, if you are taking the time to prepare additional witnesses as well, the same is all the more true. And, what makes it harder for family lawyers is that we are in court a lot. We mediate a lot. We are the ER surgeons of the legal world—our hearings and cases don’t involve months of fine tuning and preparation. Instead we often have to adapt quickly and 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 make a greater effort to prioritize making their clients, and the important witnesses of their case, better prepared to convey the focused testimony needed to get favorable rulings in any hearing involving family law issues.