Do you remember the first witness you prepared? The story often doesn’t end well for young lawyers. A client told me an amusing story of his first witness:
“I was a young associate at a big New York firm. It was a pro bono case for a private school involving a termination. A senior associate was managing the case. The day before trial he was called off on another matter. He told me I had to prepare two of the key School witnesses – an administrator and a teacher. I had never prepared a witness or even seen how it was done. This was his summary advice, delivered as he was leaving his office:
1. Put yourself in the shoes of a juror
2. Tell the witness to tell the truth
3. Look like you know what you’re doing!
The School witnesses were educated, poised and well-spoken but I didn’t know what I was doing. They testified poorly and the jury found against the School. After the verdict the senior associate turned to me and asked, ‘Why do witnesses always want to screw us?’”
I remember the first witness I helped prepare as clearly today as that February afternoon twenty-five years ago. He was an expert in a toxic tort case. He had never testified in court, and I had never prepared a witness for trial. Guess how this story ended?
The expert was a distinguished cardiologist who spoke at a fast clip and with great authority. He was taking a fairly aggressive (and legally necessary) position on medical causation that made him vulnerable to a skillful cross examination. In his mind he had worked out multiple defenses for every conceivable line of attack. He was supremely confident and he didn’t take advice well.
I didn’t offer much advice since I didn’t know what I was doing. Fortunately, there was another lawyer who had second-chaired a couple of trials. I remember the preparation focused on direct examination, carefully setting the foundation for his opinion. Near the end of the prep session, with only about thirty minutes remaining, we turned to cross examination.
We tried to describe the ways opposing counsel might attack him but he brushed us off. He felt he had it under control. “Don’t worry,” he kept saying as he gathered his papers to leave. So we didn’t. After all, he was an eminent physician and he seemed so sure of himself.
His direct exam went well but the cross exam did not. If it wasn’t quite a disaster, it certainly neutralized him as an effective expert witness.
- Don’t be silenced or overly impressed by a confident expert
- Never fail to reserve time to prepare for cross examination