I was sitting in an old courtroom in Connecticut. The steam radiators hissed and clanked and the tall windows rattled in the winter wind. I was helping a lawyer named Gus defend a medical malpractice case. Gus had been trying malpractice cases for over thirty years. He lived for the courtroom and had well over a hundred jury verdicts.
Our client was a physician, and he had testified well. There were two other defendants, both doctors. One of the co-defendants was on the stand for her cross examination. She was in her early 50s and seemed kind and competent – a doctor most of us would be happy to consult. As plaintiff’s counsel rose to begin his cross examination I could see her jaw and back stiffen in anticipation. She looked nervous and uncertain.
The cross examiner was one of the best medical malpractice attorneys in the state. He was respectful but formal and he took his time probing her decisions, deconstructing them in a way that made her look inept. He was not rude but methodical. She seemed defenseless and confused. She had some good explanations but she didn’t present them effectively. They tumbled out awkwardly and without conviction. By the end of cross examination she was clearly shaken. She looked small, helpless and alone. It was sad and uncomfortable to watch, and I felt terribly for her. After a short re-direct she limped off the stand like someone who had just been beaten.
If that was the end of the story, we’d feel badly for the doctor but tip our hat to a first-rate cross examination. But I learned later that she had received about an hour of trial preparation. I couldn’t believe it. It didn’t seem possible. This was a major case and she was a defendant.
I called Gus and asked him, “How could a defendant get only an hour of trial prep in a major case with huge potential damages against a first-rate lawyer?” I could hear a little chuckle on the other end. Gus had seen a lot in thirty years of practice. “Well, it’s not that surprising,” he said. “I’ve seen or heard of many similar cases.” I was puzzled. “Why does it happen?” Gus thought for a while and said, “I can think of a lot of reasons.” He then gave seven reasons for why it could happen. Many of them are founded on serious misconceptions.
- Testifying is just telling the truth, and that doesn’t require much preparation time.
- If we overprepare a witness, the testimony will sound canned and coached.
- We don’t appreciate how difficult or unnatural a deposition or cross exam can be for a client, and so we don’t provide as much support and time as we could.
- We don’t think we can help a witness that much. They are who they are.
- If it looks like we coached a witness, it could be an ethical problem.
- Preparing an important witness takes a lot of time and there isn’t much time in the weeks before trial.
- The client may be uncooperative or unwilling to give much time.
That is a long list of reasons for not doing something and it doesn’t even include the budget issue. No wonder Gus had seen so many underprepared witnesses.
This is apparently an old problem. Years ago in “Preparing Witnesses,” The Litigation Manual (ABA, 1989) David Berg, a well-known Texas attorney, wrote:
“There are lawyers who refuse to ‘woodshed’ witnesses at all, who just throw them up on the stand and let them tell their story. Their clients are most often referred to as appellants. It is probably unethical to fail to prepare a witness, and it is undoubtedly cruel to subject anyone to cross examination without preparation.”
Michael Tigar echoed these observations in Examining Witnesses (2nd Edition, ABA, 2003, pages 131-132) when he identified “some usual styles of client preparation:”
“First case….Why do prosecutors lose perfectly good cases with fairly simple facts? Usually, they lose because their schedules force them to rely on police reports and they don’t take the time to know the victim well enough to conduct her direct examination. Often the victim has been shuffled through the bureaucratic maze with little or no emphasis on what she will face at trial… Second case: busy defense counsel has trouble dealing with the client…The lawyer makes a few suggestions and leaves it at that…
Third case: in a busy negligence practice the … [prep] session is conducted in a routinized and usual way…The client never truly feels comfortable, and the lawyer misses clues to human strengths and frailties that would have given ideas for direct or sounded alarms about cross-examination. Fourth case: there are lawyers – I’ve worked with them – who disdain detailed preparation of their clients to testify. They sit with the client, describe the issues, discuss potential problems … talk about the opponent’s strategy, and let it go at that… In all four cases the lawyers are wrong.”
One more story. In a high profile product liability case a Fortune 100 corporate defendant retained four medical experts. They would all testify in court. None of them had been involved in litigation, even as a consulting expert. They were litigation novices and they were chosen in part for that purity. That’s fine except they were only prepared for direct exam; they were never properly prepared for cross; they were never given any guidance or practice in how to defend against a very good cross examiner. And they were rookies in the courtroom.
The lawyers (from a large firm) made two assumptions: 1) the medical and scientific truth would ultimately win out and 2) the jury would see pure scientists, unsullied by the litigation game, as more credible than experts with court experience. These are noble assumptions but the fact is those four experts were dismembered and neutralized on cross examination.
Why does this keep happening? Is there a blind spot in our litigation training? If there is, it’s puzzling because preparing inexperienced clients is important and difficult work. It can take as much skill and care to prepare a witness for a tough exam as it does to ask the questions.
The core of this blog is about understanding witnesses – why they struggle and what they need. It’s about mental preparation and confidence and human nature, and believing deeply that almost all witnesses can get better with good preparation. It’s a forum for discussing best practices and perhaps also (through your comments) a think tank for new ideas and practice tips. I hope you’ll join in and share your experiences.