I was talking with my cousin Danny a few years after the Gus case – the case that taught me how easily clients could be unprepared for testifying. Danny is a high school English teacher who thinks a lot about his profession. We got into a long discussion of the parallels of struggling students and struggling witnesses and how to help them.
Danny said he spends nearly as much time trying to figure out how his students learn as he does on what and how to teach them. He uses a checklist that includes questions about the child’s aptitudes, learning style, home life and friends. Unfortunately, he said many teachers don’t make the time or have the interest in the learning side of education. Why? Perhaps they feel more in control when they’re in instruction mode or they find the learning piece too complex or perhaps they don’t care enough or have the time.
I saw a rough analogue between teaching and learning in school and examining and preparing witnesses. Gus, the medical malpractice lawyer, told me he far prefers examining witnesses and formulating questions. He finds the work of preparing a witness to be laborious, though important, and it’s not as interesting as interrogating and impeaching a witness. After all, a good examination can put points on the board and maybe draw a little blood. Preparing a witness is more like playing defense, and defense is rarely as exciting or satisfying as offense.
After my chat with Danny I became curious about how trial lawyers first learned to prepare a witness and whether there were any standards or best practices. So I started talking informally to seasoned lawyers around the country. At this writing, I’ve talked to about thirty practitioners. It’s no scientific sample but it revealed some interesting points:
- There was nothing in law school about witness preparation (other than ethics)
- Most lawyers learned by watching a senior attorney prepare a witness for deposition
- Nobody had been formally trained on how to prepare a witness for trial
- NITA has no witness prep program (they have many programs on asking questions)
- There was a wide range of opinions about what was important and what worked and it varied by litigation practice.
The bottom line is that there were no best practices and no theory of how to prepare a witness. There may have been some literature and a few CLE courses but nobody remembered them.
One lawyer told me the story of being in a one week trial skills program when one of the instructors shared his simple philosophy of preparing a witness: “Do what I tell you or I’ll break your arm!”
Question: How did you learn to prepare a witness? Was it the same way I learned – by stumbling around and messing up – or did you have more structured training?