I love helping witnesses, particularly those facing a tough examination. I’m not sure how I developed this interest. Perhaps it was Mr. Langdon, the high school teacher who coached me into surviving my first big speech. I was a shy kid. Or maybe it’s the teacher in me. If I hadn’t become a lawyer, I probably would have been a teacher, and I would have spent a lot of time with any student who was struggling in my class. I’m a sucker for underdogs.
After practicing law in Boston for six years I joined the plaintiffs’ trial team in a landmark environmental case that became the subject of the book, A Civil Action. That was a case study in underdog lawyering. In 1996 I formed Phillips Partners, a trial consulting firm, to bring a perspective to litigation that was not taught in law school.
Over the years I saw a great many witnesses who testified poorly. At first I didn’t think much about them. If I had, I probably would have blamed the witnesses. Then I heard stories about witnesses getting very little preparation. That puzzled me. Later I was in a Connecticut courtroom and saw a physician get torn apart in cross examination. It was uncomfortable to watch and I felt terribly for her. She was clearly shaken and looked small, helpless and alone.
Although the case involved enormous damages and she was a party defendant, her attorney had only given her an hour of trial preparation. I found that appalling and I started thinking long and hard about the theory and practice of witness preparation.
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 about strategies and tips for preparing and examining witnesses. Finally, it’s a forum for discussing best practices. In the course of that conversation we will touch on juries, trials, direct examination and demonstrative exhibits.