There is a powerful idea among many practitioners that over-preparing a witness will lead to canned testimony and a loss of authenticity and credibility. I believe this is largely a myth, and it’s a dangerous one because it can lead to inadequate preparation of a client.
The idea may have originated in a Manhattan courtroom in 1911. I’ll get to that story shortly but let’s first look at some anecdotal evidence that challenges the belief that too much preparation undermines credibility.
Mark Twain had thought about it. He recognized the central paradox – good preparation frees you to be more natural. He wryly wrote:
“It takes at least three weeks to prepare a good impromptu speech!”
A more recent example is Steve Jobs. He would spend two full days rehearsing the launch of a new product. Yet there was nothing rigid in his presentation. There was an informality and casualness about him, which was surprising since he was such an intense guy. That is the paradox – the casualness came only after intense practice and preparation.
We see a similar connection in music. Much of jazz is built on improvisation but it rests on a foundation of great preparation. Charlie Parker, the great saxophonist, talked about this:
“Master your instrument. Master the music. Then forget all that bullshit and just play.”
The concern about over-preparation is more relevant for direct examination than cross, and it may come down to a narrow point of whether the witness has been instructed to say something very specific. Scripting written answers that aren’t natural answers for the witness is generally inadvisable and potentially unethical, but scripting is different from being very well-prepared.
In some cases even well-rehearsed testimony may not damage a witness. A celebrated example occurred in the Martha Stewart case. Slate magazine was covering the trial and described the prosecution’s star witness, Douglas Faneuil, as follows:
“Despite his glaring weaknesses (he was an admitted liar), he is a superb witness. As the defense would later point out, Faneuil’s testimony was obviously rehearsed. However, with only a few exceptions, the rehearsal appeared mainly to instill in Faneuil the Zen-like calm necessary to weather two hours of intense cross examination. Before then came three hours of direct testimony. Faneuil anchored his descriptions with vivid, specific details. He used language that was forceful and direct… He was never defensive. Stewart’s counsel devoted a full hour to demonstrating how much rehearsal Faneuil had had, at one point asking if the preparation had included acting lessons. Faneuil said with the perfect amount of emphasis, ‘Absolutely not.’”
Martha went to jail largely because of this testimony. That’s not supposed to happen. Rehearsed testimony is supposed to be fatal to credibility. Why wasn’t it here? Certainly, the prosecutor had prepared Faneuil well for a long and blistering cross. He was probably telling the truth – nobody is that good an actor. So maybe the issue is not so much about being rehearsed as it is being rehearsed to tell a lie.
It’s ironic that so many believe that great preparation is the first rule of good lawyering, while also believing that too much preparation is bad for a witness. Where did this idea come from?
As mentioned earlier, I think it may have started in a New York courtroom with one of the great cross examinations of all time. On March 25, 1911 a fire broke out in Manhattan on the eighth floor of the Triangle Shirtwaist Company, which was New York’s largest blouse-making factory. The owners had blocked the exit doors to prevent unauthorized breaks and one hundred forty six garment workers died. The owners escaped through the roof.
The District Attorney brought manslaughter charges against the owners. Public opinion was all for hanging them. Max Steuer, a legendary trial lawyer, defended them. At trial the last witness for the prosecution was Kate Alterman. She was a young sewing machine operator who worked on the ninth floor. On direct exam she recounted in detail the panic and flight of workers and used vivid phrases such as “a red curtain of fire.” Max Steuer thought there was something odd about her testimony. He “detected the telltale echoes of stagecraft” and concluded that Ms. Alterman had been coached by the prosecution and had memorized a script. [The Fire That Changed America, David Von Drehle]
Steuer began his cross by establishing that she had met with prosecution attorneys a number of times before trial. Steuer then asked her to repeat what she witnessed. He had primed the jury to listen for “red curtain of fire.” Ms. Alterman repeated her description perfectly, as if it was a playback of a recording. Steuer then had her repeat her story a third and fourth time. It was nearly the same each time. The prosecution didn’t object that the question had been asked and answered. After the fourth replay of the story Kate Alterman’s credibility was destroyed along with the prosecution’s case. The owners were acquitted.
This cross examination achieved iconic status within the trial bar and became a vivid case study for many young trial lawyers. The message, of course, is that scripted testimony is a terrible idea. We can all agree on that, if it’s untruthful testimony. I do not know if Kate was exaggerating what she witnessed or if the District Attorney implanted the words and descriptions in her mind. For our purposes the important point is what the trial bar took away from her testimony – to suspect most everything that wasn’t natural and spontaneous.
There is confusion between being prepared and being scripted. Good preparation frees us to testify more naturally. Rehearsing testimony won’t save a lie but it will help explain the truth.