1. Preparing Witnesses
February 1, 2011
Presented by
Jeffrey D. Polsky, Esq.
Preparing a Witness
© 2011 Fox Rothschild

2. Is the prep session privileged?
 Is the witness a “client”?
- Under Upjohn Co. v. U.S., 449 U.S. 383 (1981), the
attorney-client privilege extends to a corporate
client’s non-managers
- But if you don’t represent the witness as an
individual, make that clear
 Is there anyone at the prep session whose
presence defeats the privilege?
- Only those necessary to further the client’s interests
and those to whom disclosure is reasonably
necessary
Preparing a Witness
© 2011 Fox Rothschild

3. Explain the Process
 Determine the witness’s experience in
testifying
 Explain to inexperienced witnesses what
to expect
- Location
- Timing
- Who will be there
- What each person’s role is
Preparing a Witness
© 2011 Fox Rothschild

4. Explain the Process
 Explaining what to expect (continued)
- Who can ask questions
- How the proceedings are recorded (e.g.
video)
- How to dress
- Opposing counsel’s style of questioning
- Interactions between attorneys
- Protective orders and motions in limine
- What to bring or not to bring
Preparing a Witness
© 2011 Fox Rothschild

5. Explain the Process
 If in a trial or hearing:
- Not to visibly react to testimony or rulings
- Not to seem overly friendly to one side
- To be mindful of the presence of judges,
jurors, hearing officers, arbitrators, etc. when
outside of the hearing
Preparing a Witness
© 2011 Fox Rothschild

6. Provide Context
 What the case is about?
- What are the specific claims and defenses in
dispute?
- How does the witness’s testimony relate to
these claims and defenses?
 Has the witness given prior testimony or
verified responses?
Preparing a Witness
© 2011 Fox Rothschild

7. The Ground Rules
1. Tell the truth
 Explain ramifications of getting caught in
a lie
 It’s the
– Right thing to do
– The legally required thing to do
– The easy thing to do
 Don’t exaggerate
 Don’t be evasive
Preparing a Witness
© 2011 Fox Rothschild

8. The Ground Rules
2. Make sure that you understand the question
- Active listening – requires focus and attention
- Make sure question is finished (only 1 person
talking on record at a time)
- Take your time
 Depends somewhat on nature of proceeding
 Thinking out loud better than long pauses
- If don’t understand the question, say so
Preparing a Witness
© 2011 Fox Rothschild

9. The Ground Rules
3. Don’t guess
- Don’t try to portray yourself as all-knowing
- Don’t be bullied into giving an answer
- But if you have an answer, give it
- Estimates OK, but phrase it as such
 Explain difference between guessing and
estimating
Preparing a Witness
© 2011 Fox Rothschild

10. The Ground Rules
4. Answer only the specific question asked
 This is the most common mistake
witnesses make
 Give examples
 At deposition
 Keep answers direct and concise – If can
answer “yes” or “no,” do so and stop
 Not your job to educate opposing counsel
 Not the forum to tell your side of the story
 Think of the games 20 Questions or Fish
Preparing a Witness
© 2011 Fox Rothschild

11. The Ground Rules
4. Answer the specific question
▪ At trial or hearing -- explain and demonstrate the
difference between direct and cross
 Direct exam – open-ended questions
 Need to paint the picture
 But don’t give speeches
 Cross exam – leading questions
 Being concise is still important, but not as critical as in a
depo
 If you need to explain an answer, do so
 But don’t argue with opposing counsel
 Practice using role-playing/mock examination
 Don’t automatically accept the questioner’s
rephrasing
Preparing a Witness
© 2011 Fox Rothschild

12. The Ground Rules
5. Don’t try to portray yourself as righteous
or infallible
- No case has perfect facts
- Good witnesses acknowledge weaknesses
- Don’t fight on points you can’t win
Preparing a Witness
© 2011 Fox Rothschild

13. The Ground Rules
6. How to handle objections
- Let counsel complete objection
- At deposition, answer unless instructed
not to
- At trial or hearing, wait for a ruling
- Don’t feel badgered by questions that you
think aren’t relevant
- Don’t refuse to answer a question
Preparing a Witness
© 2011 Fox Rothschild

14. The Ground Rules
7. Breaks
- At deposition, just ask
- At trial or hearing, only in an emergency
 Don’t ask to speak to counsel
Preparing a Witness
© 2011 Fox Rothschild

15. The Ground Rules
8. Explain how to handle mistakes
- Opportunity to review and correct depo
transcript
 But opposing counsel can comment on changes
 Better to speak up as soon as you realize it
 If unsure, ask for a break and consult with
counsel
- At trial or hearing, speak up to correct
mistakes (unless there will be an
opportunity to consult counsel)
Preparing a Witness
© 2011 Fox Rothschild

16. The Ground Rules
9. Handling documents
 Prepare for questions about documents
reviewed
 Read exhibits carefully
 Handling exhibits
Preparing a Witness
© 2011 Fox Rothschild

17. The Ground Rules
10. Being in the right frame of mind
- Avoid alcohol and tranquilizers
- Eat a good meal
- Get rest, exercise
Preparing a Witness
© 2011 Fox Rothschild

18. The Ground Rules
11. Speak clearly
- Answer out loud and with words
- Don’t mumble
- Don’t talk too fast or too slow
- Don’t kid or joke
- Speak in your own words – don’t memorize
- Avoid inconsistencies
 But not if it means repeating a mistake
Preparing a Witness
© 2011 Fox Rothschild

19. The Ground Rules
11. Speak clearly (continued)
- Especially at trial or hearing, same
demeanor on direct and cross-exam
 Tone
 Emotion
 Volume
 Expression
 Speed
 Consider videotaping (either informally or with a
jury consultant)
Preparing a Witness
© 2011 Fox Rothschild

20. The Ground Rules
12. Be calm and courteous
- Don’t interrupt
- Don’t get emotional
- Be polite to everyone present
 If address judge directly, “your honor”
 If a party, stand when jurors enter or exit
- In court or hearing, don’t
 Read
 Chew gum
 Talk
 Sleep
Preparing a Witness
© 2011 Fox Rothschild

21. Ground Rules
13. In trial, never talk to jurors
- Inside or outside the courtroom
- Be careful what you say anywhere jurors
may be
Preparing a Witness
© 2011 Fox Rothschild

22. Ground Rule
14. Don’t be afraid to admit that you
prepared
- Met with counsel
- Reviewed documents
Preparing a Witness
© 2011 Fox Rothschild

23. The Ground Rules
15. Be confident
- Eye contact
 Usually, at questioner
 At trial or hearing, direct lengthier explanations
to the trier of fact
 Don’t look to others for guidance
- Avoid fidgeting
- Posture
Preparing a Witness
© 2011 Fox Rothschild

24. The Ground Rules
16. If a witness in a trial or hearing
- Don’t pass notes
- Do not wave, greet, or talk to people you
know when entering or exiting the court or
hearing
- Leave when your testimony is done
Preparing a Witness
© 2011 Fox Rothschild

25. Substantive Testimony
Prepare for background questions
- Education
- Employment
- Criminal convictions
- Health problems affecting ability to testify
- Bankruptcies
- Prior litigation
Preparing a Witness
© 2011 Fox Rothschild

26. Substantive Testimony
 In preparing witnesses, don’t just tell
them, show them
- Demonstrate the points you’re making
- Provides an opportunity to assess what
witness’s strengths and weaknesses are
Preparing a Witness
© 2011 Fox Rothschild

27. Contact Information
Jeffrey D. Polsky, Esq.
415.364.5563
813.5563
jpolsky@foxrothschild.com
Preparing a Witness
© 2011 Fox Rothschild