Preparing a Witness to Testify – Part One

Dispute resolution management requires realism and maturity. People, and their lawyers who think that they can prevail despite the facts, despite the law, and that all they have to do is tell the story a certain way, usually fail. Sometimes they get away with murder, but it is very rare. Justice usually works the way the justice system is intended to work. And that is even more reliable in business disputes where the burden of proof is simply that your side of the case is more appealing that that of the opponent. More appealing in this context is not just a sympathy contest. More appealing really means that what you are telling the judge, jury or arbitrators is corroborated by extrinsic evidence that was created when there was no dispute, usually in the normal course of business — what you honestly wrote about what was happening at the time it was actually happening.

Where does that leave us? It usually leaves us with a level playing field in which the correct result is the most likely result. It is probably not going to be possible to change that by concocting fanciful stories contrary to the true facts. Executives to whom everyone has always been afraid to tell the unvarnished truth without polishing it to reflect positively upon their ego often get their comeuppance because they can’t imagine anyone having the unmitigated gall to challenge their veracity and make them eat their own paperwork in a public forum. Either a way has to be found to keep such people from testifying, or they will need to be taught how best to talk to people whom they can’t fire.

I have my own way to evaluate a case and to prepare a witness. I am absolutely brutal on my own side of the case. If it can pass my sniff test, it will probably pass that of any judge, jury or arbitrator. And if it can’t pass my sniff test, I tell the client about my concerns. The client can then consider my advice and seek a reasonable resolution, or look elsewhere for more credulous counsel. In my experience, if you are forthright about the situation early on, and have not called everyone on the other side awful names, rational resolutions are readily available and, in the long run, much less costly. If we have a good case, and the opposition cannot be convinced of that, then we do have to go to trial, and we have to have our people testify in a way that makes them practically immune to effective cross-examination. How you go about doing that is the lesson of this tutorial.

People come in all varieties of personality. The most scrupulously honest person may be the most boring, confused, frightened individual who, though he would only tell the truth, would tell it so badly that his testimony is worthless or worse. Among the sentiments at work in the mind of a potential witness are, in addition to an inclination to truthfulness, fear of being embarrassed; for embarrassing others and his company; for not being able to provide affirmative support for his side of the case; for his position in the company should he be seen not to have been helpful; for his financial future; for his references, promotions; for his being included in significant projects; for his dignity; for his family; for his masculinity; for … the list could go on and on. Is he boring? Is he a smartass? Does he have nervous tics that can be interpreted adversely? Does he get quickly to the point or wander around it forever? Is he into self-justification? Is he ostentatiously religious? Does he have his own agenda? Is he intelligent? What are his language skills? What are his reasoning skills? Does he try too hard to please, either you or, when the time comes, opposing counsel? Will your time spent trying to help him be simply truthful be seen as an inappropriate attempt to coach your client’s agenda? Does he fear you are trying to make him someone other than who he really is, and that he won’t be able to do it the way you want.

If the witness is the high panjandrum who is always treated with deference to an extreme — used to having his own way – there is another cart full of baggage to be accounted for. With this person the relationship building is tougher, because he can fire you and find a ‘real’ lawyer who appreciates who this person really is and how he is to be treated. His ego is engaged far more than any other witness in the company. He expects to appear for a deposition and at trial and have the judge, jury and opposing counsel rise when he enters the room, and that he will be able to control the questioning, not the lawyers or the judge. If you have never seen such a person on the witness stand, you have missed a spectacle. When his side loses, his analysis is that the company’s lawyer would have won if he had just ‘put me back up on the stand’. Yeah right!

All these and many more fears and attitudes are strongly present in the mind of a potential witness. They will have a physical effect upon him. They must be recognized and addressed in an effective relationship-building manner, so that in the end you have built confidence and trust, not fear and loathing.

The central goal of all you do to prepare a witness to testify has to be to show him how to tell the truth in a way that is obviously truthful. One by one you must help him overcome each of his fears and each of his adverse tendencies. You must spend time with a witness. You must show him how to do his homework. And you must do it before he testifies in his first deposition, as changes in testimony later on may be used to impeach credibility. It is not an issue of rote memorization. That is almost as bad as ineptitude. The goal is that he knows what the truth is and how best he can state it with the least fear of confusion or of being ambushed on cross-examination.

These thoughts presuppose that you will be candid with a client or potential client once you have evaluated his position based on the available evidence. If you will continue to tell folks that they are on the side of the angels when it is clear that the other side has something significant supporting it’s position, and don’t aggressively promote amicable resolution, then you won’t be useful to the client. Delusional lawyers and desperate clients concoct fanciful stories that are not worthy of belief and try to sell them to a room full of ordinary folk with ordinary common sense. Most of the time that doesn’t work.

We are now at the point at which our investigation about our client’s position is telling us that we have a sound evidential and legal position, and we are not getting anywhere with initial efforts at reasonable settlement. People will have to be deposed. Now is when you prepare for trial — not prepare for a deposition — prepare for trial. To me the deposition is the trial. I want my people to be as good in the deposition as they will be expected to be at trial. If that can be accomplished, the deposition transcript will not be useful in the witness’ cross examination, for there will be no prior testimony inconsistent with his trial testimony. The deposition will serve to enhance chances of settlement.

Witness preparation begins with reassurance. Tell the witness what you think about the case. Tell the witness that the only thing he can do to hurt you is to be untruthful. Tell the witness that if you have made a mistake and he spots it, the greatest favor he can do for you and for the company is tell you what that mistake is. If his perception differs from yours, remember that he was there when it happened. You weren’t. Tell the witness that the plainer and simpler the telling of the truth is, the more believable a witness he will be. Tell the witness that it is easy to remember the truth and difficult to tell untrue stories the same way more than once. Tell the witness that what you are going to help him do is to tell the truth in the plainest and simplest and most direct form, eliminating extraneous noise that everyone has when they speak of events and their participation in them. Tell the witness that not every fact in any case is going to be one hundred percent in support of your side of the case, and that the negatives have to be dealt with in equally straight forward a manner as the positives. A witness who will, without hesitation, own up to a mistake is a believable witness. Having been up front about the bad stuff, what he says about the good stuff will be pure gold credibility. If you have no confidence in your case because of the presence of negative facts, then you probably don’t have a case and ought to settle it as soon as possible. Negative facts abound in every business dispute There are always mistakes in every single business project. Perfection is impossible, and pretense about never being wrong is a hallmark of a liar.

Now that you have had the conversations with the witness that have provided him with the requisite comfort level, and trust has been established between you, it is time to ‘work’ the documents and hear what he has to say — round one. There are two ways to approach this. One is to simply talk to him about the events that are at the core of the dispute. It should be as much a conversation as you can make it. Save the tough questioning for another round. The other is to have first given him a set of the relevant documents to study to refresh his recollection, and then have the initial conversation about the events.

I think most people will appreciate having been given the documents first rather than having been allowed to misspeak and then perhaps be embarrassed when the documented history does not agree. If embarrassment raises its ugly head, it will either be a positive learning experience or you will have to go back and rebuild part of the relationship with him. Keep reminding him that there is no agenda to tell the ‘story’ in a particular direction. At this point the object is to get him to appreciate what really happened and sort out any incorrect recollections he may have had. In this manner you are consolidating the truth in his mind and eliminating unreliable recollections. It may be that some documentation does not mean what it seems to mean, and this round will help you sort that out also.

People do not always say things in an unambiguous manner. Sometimes it is useful for the witness to know what others have said about the events if their statements seem to conflict with his. If there is genuine conflict, it needs to get sorted out. If not, telling him what others had to say may not be productive. It would be helpful in this phase to know whether he and others who were involved have had conversations amongst themselves about the events, and what those conversations were. It is now a distillation process for the witness and for the documentation.

It is important to discuss the completeness of the documents. Are all the files there? Is anything missing? Have documents been removed from any files? If so, what happened to them. File searchers and those involved in the operative events are known to remove and destroy files. In-house lawyers, seeking to impress their only client with their loyalty will do that also. Witnesses will be asked about records retention/destruction when they are deposed. Find out the truth before you are on a public record and under oath.

Once the distillation process is complete, and the witness and you are both confident that the essential truth is clear to both of you, and you are still comfortable with your case, it is time for round two — noise reduction.