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Preparing Witnesses to Testify: “Three Rules of 3”

THIRTEEN BUILDING BLOCKS FOR BECOMING A GREAT TRIAL LAWYER

David C. Kent SEDGWICK LLP – DALLAS

Dallas Bar Association

Trial Skills Section

“Even though witness preparation occurs in practically every lawsuit, it is almost never taught in law school, not directly regulated, seldom discussed in scholarly literature, and rarely litigated. Witness preparation is treated as one of the dark secrets of the legal profession.”

-- Prof. John Applegate

“[The lawyer’s] duty is to extract the facts from the witness, not to pour them into him; to learn what the witness does know, not to teach him what he ought to know.”

-- In re Eldridge, 37 N.Y. 161, 171 (N.Y. 1880)

The Lawyer’s Duty

“3 Rules for You”

Rule #1: Know Your Limits

Improper Actions – The Big Four

1. Destruction, alteration or secretion of evidence

2. Obstructing access to witnesses

3. Paying for testimony (bribery)

4. Offering false testimony

Improper Actions #4: False Testimony

• May not “knowingly” offer false testimony −“Knowingly” = actual knowledge of falsity, but

knowledge can be inferred

• If in doubt, offer the testimony

• Rely on cross-examination and the adversary system to straighten it out

Permissible Conduct

RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 116:

Interviewing and Preparing a Prospective Witness

Permissible Conduct

1. Invite the witness to provide truthful testimony favorable to the lawyer’s client;

2. Discuss the witness’s recollection and probable testimony;

3. Review the factual context into which the witness’s observations or opinions will fit;

4. Review documents or other physical evidence that may be introduced;

Permissible Conduct (Continued)

5. Reveal to the witness other testimony or evidence that will be presented and ask the witness to reconsider the witness’s recollection or recounting of events in that light;

6. Discuss the applicability of law to the events in issue;

7. Discuss probable lines of hostile cross-examination that the witness should be prepared to meet;

Permissible Conduct (Continued)

8. Discuss the role of the witness and effective courtroom demeanor;

9. Suggest choice of words that might be employed to make the witness’s meaning clear; and

10. Rehearse testimony.

“3 Rules for You”

Rule #2: Know Your Privileges

Know Your Privileges

1. Third Party Witness or Client? • Third Party Witness = Not Privileged • Client = Privileged

2. Fact or Expert Witness? • Fact = Not Privileged • Expert = Somewhat privileged

State Court = generally not privileged Federal Court = somewhat privileged

3. Work Product Privileges

“3 Rules for You” Rule #3: Know Your Witness

The CEO / Professional

Fair-Weather Friends & Faint-Hearted Heroes

Sergeant Shultz (“I Know Nothing”)

Problem Witnesses: The Mid-Level Manager

• The “I told you so” manager

• The fired & disgruntled manager

• The Peter Principle manager

“3 Rules for Your Witness”

3 Rules for Your Witness

Checklists and

The Witness Tutorial



• Tell the Truth

• The Whole Truth

• Nothing But the Truth

3 Rules for Your Witness Rule #1: Tell the Truth

#1: Tell the Truth

It’s not just good advice.

It’s the law.

#1: Tell the Truth

Tell the Truth

= Report the facts

Report the facts.

Accurately.

#1: Tell the Truth

Report the facts.

Accurately. Precisely.

#1: Tell the Truth

Report the facts.

Accurately. Precisely. Simply.

#1: Tell the Truth

3 Rules for Your Witness Rule #2: The Whole Truth

Provide context and meaning to the facts reported

#2: The Whole Truth

A full and complete answer to the question asked

Half-truths and misleading answers

don’t count

#2: The Whole Truth

3 Rules for Your Witness Rule #3: Nothing but the Truth

Defend your context and meaning

Don’t let the questioner define it for you

#3: Nothing But the Truth

• Answer only the question asked

• Do not volunteer

• Short answers are better than long ones

• “Yes,” “No” and “I don’t know” are acceptable, if they are correct

• Learn and return to your “talking points” and “safe harbor” answers


• Confusing to witnesses • Potential source of trouble

–“Were you alone with Monica Lewinsky?”

–“It depends on what the meaning of ‘is’ is.”

#2: The Whole Truth vs.


“3 Rules for Your Audience”


Rule #1: Do as Your Mother Says . . .



SIT UP STRAIGHT!

Sit on the front edge of the chair

Lean forward 20º

Sit Up Straight: The Newscaster Position

Don’t get tired or lazy!

Sit Up Straight


Sit Up Straight

Sit Up Straight


Sit Up Straight


Sit Up Straight


Sit Up Straight


Sit Up Straight



Sit Up Straight

“Be Classy, Dallas”

Sit Up Straight

Avoid Busy or Distracting Clothes, Jewelry

or HAIR

Phil Spector

Sit Up Straight

Avoid Busy or Distracting Clothes, Jewelry

or HAIR

Phil Spector

Sit Up Straight

Avoid Busy or Distracting Clothes, Jewelry or HAIR

Phil Spector




Rule #2: Do as Your Mother Says . . . STOP FIDGETING!

Stop Fidgeting

Beware of Body Language “The Camera Never Blinks”

Stop Fidgeting Hands flat on the table

Dominant hand on top

Stop Fidgeting

Hands flat on the table

Stop Fidgeting

Hands flat on the table =

control “crazy hand” urges

Stop Fidgeting



Stop Fidgeting



Stop Fidgeting Hands flat on the table =


Stop Fidgeting

Body Language – Arms Crossed

Stop Fidgeting


Stop Fidgeting


Stop Fidgeting


Stop Fidgeting

Facial Expressions -- Anger

Stop Fidgeting


Stop Fidgeting


Stop Fidgeting


Stop Fidgeting


Stop Fidgeting

Facial Expressions -- Pursed Lips

Stop Fidgeting


Stop Fidgeting


Stop Fidgeting


Stop Fidgeting


Oops!

Stop Fidgeting

Facial Mannerisms – Rolled Eyes

Stop Fidgeting


Stop Fidgeting


Stop Fidgeting

Facial Mannerisms – Smiles or Smirks?

Stop Fidgeting


Stop Fidgeting


Stop Fidgeting

Body Movements – Shrugged Shoulders

Stop Fidgeting

Body Movements – Shrugged Shoulders

Stop Fidgeting

Nervous Mannerisms – Touching Face

Stop Fidgeting

Nervous Mannerisms – Touching Hair

Stop Fidgeting

Nervous Mannerisms – Tugging Ears

Stop Fidgeting

Nervous Mannerisms – Touching Temples

Stop Fidgeting

Nervous Mannerisms – Touching Lips

Stop Fidgeting


Stop Fidgeting


Stop Fidgeting

Nervous Mannerisms – Touching Nose

Stop Fidgeting


Stop Fidgeting


Stop Fidgeting

Nervous Mannerisms – Steepling Hands

Stop Fidgeting

Nervous Mannerisms – Playing with Rings

Stop Fidgeting


Stop Fidgeting


Stop Fidgeting


Stop Fidgeting

Body Language – The Exaggerated Sigh

Stop Fidgeting

Body Language – Being Caught Unaware

Stop Fidgeting

Body Language – Being Caught Unaware

Stop Fidgeting

Body Language – “Cool, Calm and Cheney”

Stop Fidgeting

Body Language – “Calm, Cool and Cheney”


Rule #3: “How do I get to Carnegie Hall?”


Rule #3: “How do I get to Carnegie Hall?”

PRACTICE!

How Do I Get to Carnegie Hall?

Practice before the camera

Recommendations for Witness Prep

•What would your mother say?

• Steer clear of trouble

•The Star Trek mantra

In the End, the Court Wins

An attorney owes his first duty to the court. He assumed his obligation toward it before he ever had a client. His oath requires him to be

absolutely honest even though his client’s interests may seem to require a contrary

course. The [lawyer] cannot serve two masters, and the one [he] has undertaken to serve primarily

is the court.

•In re Integration of Nebraska State Bar Ass’n, 275 N.W. 265, 268 (Neb. 1937)

Preparing Witnesses to Testify: “Three Rules of 3”

THIRTEEN BUILDING BLOCKS FOR BECOMING A GREAT TRIAL LAWYER

David C. Kent SEDGWICK LLP – DALLAS

Dallas Bar Association

Trial Skills Section

Documents

Preparing Witnesses to Testify: “Three Rules of 3” - Preparing Your... · Preparing Witnesses to Testify: “Three Rules of 3” THIRTEEN BUILDING BLOCKS FOR ... Phil Spector