By Thomas M. O’Toole, Ph.D.
Defense witnesses such as 30(b)(6) witnesses and key employees make or break the case. These witnesses serve a symbolic role that goes above and beyond the implications of the actual words that they say. Instead, they tell the jurors what kind of organization the defendant is. They serve as ambassadors for the defendant. If they are sloppy, disorganized, or come across as uncaring, the defendant will be perceived by the jury as sloppy, disorganized, or uncaring. In fact, the two most commonly discussed plaintiff strategies (Reptile and the referendum strategy) thrive on poor performances by key defense witnesses. The result is a frustrated jury that feels the need to “send a message” to the defendant that it needs to change the way it does business.
Fortunately, the solution is pretty simple: a witness prep session. Defense attorneys often have what they call “prep meetings” with their witnesses, but there are five common shortcomings of these sessions that undermine their effectiveness.
Here they are in no particular order:
1. Assuming the witness will do well. I have heard this so many times. “Oh, he’s a pretty good communicator, so I’m not worried about him.” To this, I always say, “remember Bill Clinton.” Bill Clinton is the only American president to be deposed while in office. Prior to his deposition, many national publications wrote about the difficulties the plaintiff’s attorneys would face in light of the fact that Clinton was known for his incredibly smooth communication skills. The reality was quite different. Clinton was overly talkative and forced pre-scripted answers at inappropriate times. To many, he came across as evasive and defensive. If this can happen to someone like Bill Clinton, known for his exceptional people skills, it can happen to your witness as well. In short, don’t make assumptions. If the witness plays an important role in the case, take the time to adequately prepare him and her to serve as an effective representative for your client.
2. Overwhelming the witness. The concern of overwhelming the witness is obvious to most defense attorneys, yet I see it happen over and over again. Defense attorneys cannot prepare a witness for every thing that might come up or every trick the plaintiff’s attorney might pull. The endless list of dos and don’ts are not the solution. Instead, defense attorneys should give witnesses a few general guidelines that will help them through any situation. For example, the key to any good testimony is very simple to describe, yet painfully difficult for many witnesses to implement: 1) listen carefully to the question; 2) think about whether or not you agree with everything in the question and 3) answer only that question. The vast majority of problems that arise during testimony come back to these three rules. Witnesses often fail to really listen to the question or think about what is actually being asked. Talkative and defensive witnesses give answers that go well beyond the scope of the question. Consequently, attorneys should spend time helping witnesses get in the routine of following these basic rules. The rest will often fall into place if the witness can get in this simple routine.
3. Ignoring the “therapy” aspect of prep sessions. I often say that witness prep sessions are essentially therapy sessions with a few key ground rules and a lot of practice thrown in. This is not true of every defense witness, but it is true of many. I’ve been part of sessions where the defense attorney became frustrated over a witness’s venting or their anxiety on certain issues. I’ve seen situations where a defense attorney told a witness that they are not going to talk about something the witness is fixated on (for example, some irrelevant issue that is causing the witness unnecessary angst) anymore. These issues have to be addressed. If they are not allowed to come out in the prep session, they will most likely come out, in one form or another, in the actual testimony. It can be frustrating to sit there for twenty minutes and listen to a defense witness complain about something related to the case, but allowing that to happen means the witness is getting it off of his or her chest. This can make a significant difference in the overall quality of the witness’s testimony and his or her ability to absorb your advice during the prep session.
4. Failing to practice. Sitting in a conference room for several hours or days and talking with the witness about his or her testimony is a great way to overwhelm and underprepare a witness. It is one thing to explain to a witness some of the tricks that the plaintiff’s attorney will deploy, but it is quite another thing for the witness to experience what it is like to have to navigate such tricks. Furthermore, a witness may understand the advice and tips that you provide, but that does not mean that he or she can effectively implement that advice. Defense attorneys need to know how their key witnesses will perform under pressure and the only way to do that is to practice cross examination and not allow the witness to call “time-out” when he or she gets a tough question. I often describe it is letting the witness fail in a safe environment. When they directly experience the discomfort of failure, they can better understand how they ended up in that situation and avoid it in their actual testimony. It is the best way to prepare them and ensure that they have truly internalized the advice that you have provided.
5. Trying to turn the witness into someone (s)he is not. Defense attorneys need to stop trying to turn witnesses into something they are not. Beyond the basic rules provided in #2, there are few rules that apply to every witness. Instead adaptation to the needs and limitations is critical. What works for one witness might not work for another. Some skilled witnesses can do a lot to effectively build defense themes in their testimony. For other witnesses, not giving up the farm is sometimes the best you can ask for. Defense attorneys need to gauge what their witnesses are truly capable of and adjust their advice accordingly. The best testimony comes when a witness is able to follow the basic rules and be him or herself in the process. Pushing too hard to change the witness can have disastrous results.
To learn more about how to conduct an effect witness prep session with defense witnesses, check out Episode 1 of The Sniper Defense, Podcast Playbook for Defense attorneys.