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The Art of Witness Preparation: A Vital Aspect of Getting Ready for Trial

Witness swearing on the bible telling the truthLike everything else courtroom-movie-related, famous testimony scenes are a big part of our collective imagination thanks to popular culture, films, and television shows. Whether it is eloquent attorneys making their opening or closing statements to a wide-eyed jury, or a witness bursts out with ‘You can’t handle the truth,’ or a hushed courtroom awaiting as your final witness steps up to the stand, the real courtroom may not always be full of so much drama. And yet, when attorneys take their case to court, chances are that witnesses will have to be called and that the clarity and authority of those witnesses can often make or break a case. This is where witness preparation comes in. It’s an important part of trial preparation and it helps you familiarize yourself with your witnesses’ strong points, weak points, substance, and delivery. 

Attorneys know this all too well. There are a lot of different aspects that go into building a solid case. There is not only the gathering and preparation of raw materials for the case, conducting depositions, responding to discoveries, and all that pre-trial fun, but there is also the very important aspect of being in control of the trial once it gets into the courtroom. Taking your case to the courtroom requires some preparation and why many attorneys and lawyers choose to go through mock trials and focused preparations. 

Witnesses are a key aspect of any case and their testimony can go a long way with the jury. And yet, it is not uncommon that witnesses stumble or become nervous on the stand. After all, they are likely testifying under oath and perhaps the testimony involves some personal information or discussing something that is particularly complex or painful. This might lead to a less-than-effective testimony that you need and it is the attorney’s job to be a good interviewer, so to speak, and guide the witness through their story. This is why witnesses will often meet with an attorney or witness preparation specialist before their trial. They will likely review, discuss, and even modify the substance and delivery of their statements and anticipated testimony. 

What is the goal of witness preparation?

In a nutshell, it’s merely a way to ensure that your witness comes out strong, honest, and credible for your case. Let’s begin there:

Credibility. It is important that the witness is guided to testify credibly as it relates both to the substance of the message and how the message is delivered. Some aspects of witness credibility include:

  • Expertise
  • Reliability 
  • Trustworthiness
  • Objectivity 

Many witnesses are called to the stand because they comprise one or all of these things. Sometimes, the witness is simply a bystander or someone who actually witnessed a particular crime or event and needs to provide their first-hand account. 

According to the American Bar Association, there are certain ethical concerns when it comes to the preparation of witnesses and this is also very important. They state that a competent lawyer will provide their client with an informed understanding of their legal rights and obligations and also explains the practical implications. There is a large onus for the attorney to responsibly provide the witness with the preparation, skill, and thorough overview of what is expected and what is to come in the trial. According to one survey, about 74% of lawyers felt they had an ethical obligation to prepare witnesses for trial. 

Ethical Considerations of Working with Witnesses

All attorneys are of course aware of their ethical responsibility to prepare a witness but never to mislead them. That’s where we come in here. A mock trial helps witnesses understand the procedures and what’s expected of them. 

Well-known rules that protect witnesses in trials from being misled include obligations of attorneys to:

  • Never counsel a client to engage in conduct they know is necessary. 
  • Never provide false evidence
  • Falsify evidence
  • Realize the distinction between preparing for ethical testimony and improperly seeking to influence testimony 

Important Considerations Before Going to Trial

In addition to the many moving parts of a trial, attorneys must recognize that their witnesses are a key aspect of it. This means that their preparation is for the sake of the case and to ensure an ethical approach to what is often not black and white. Proper witness preparation will help attorneys:

  • Know when they can prompt a witness’ memory or recollection through leading questions and asking for details. 
  • Attorneys can discuss how the law or laws apply to the issue at hand. This could help witnesses better understand their role in the case. 
  • Prompt clear statements from the witnesses by asking the right questions and/or seeking clarification. 

There are many more aspects to witness preparation. Ensuring that your witnesses feel comfortable and understand the bigger picture, the law, etc. ensures a more effective trial where the witness is clear and credible. Here at Jonathan Leach, LLC, we help attorneys prepare for trial by helping their witnesses prepare too. Our goal is to set up a scenario that feels like the real deal and can really help witnesses stay calm in the real courtroom. 

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