ALL THINGS JURY: Thoughts on witness preparation

CHARLESTON -- Preparing witnesses for depositions and trials is a common tool utilized during litigation. The goal of these efforts is to help the witness tell their story in a straightforward, understandable fashion. It is NOT a method to change any facts or elements of the witness' testimony.

Witness preparation, or witness training, is comparable to speech and communications training. The methods employed are similar.

An essential element of the training is the use of video to review the mock exercises with the witness. This allows the trainer to point out strengths and weaknesses in the witness' delivery. More importantly, the use of video helps the witness become more comfortable with the overall process. In addition, the witness can self-critique, which is one of the more powerful training attributes of the use of video.

A common way to begin the training process is to allow the lawyer or trainer conducting the deposition to do so without providing the witness with any prior input or direction. In this way, the trainer can assess the strengths of the witness, and reinforce those, while prioritizing areas that will be addressed during the training.

A basic start for assisting witnesses is non-verbal behavior (body language) assessment and recommendations. Body language recommendations are relatively easy for the witness to understand and implement. These improvements are a valuable foundation that can achieve an immediate level of improved confidence for the witness. Areas that are addressed include physical appearance, eye contact, and posture.

An important element that trial consultants bring to the practice of witness preparation is talking to the witness prior to the initial mock exercise that is video recorded. A third party, such as a trial consultant, can often intervene in a way that is less threatening to witnesses. Witnesses understand the position of the litigator and emotions may run from being intimidated by the lawyer to anxieties related to letting him/her down. Additionally, a pre-exercise discussion with a trial consultant can uncover concerns of the witness, which may not surface during the mock exercises.

One method of witness training that is often more effectively conducted by a trial consultant rather than the litigator is role-playing a role reversal. That is, allowing the witness to anticipate the questions they are to be asked and directing those questions to the trial consultant. The well-prepared trial consultant knows enough about the case to answer these questions in a thought provoking way that lacks the potential emotional issues of working with the litigator. This is a powerful tool when used properly.

Lastly, as with the pre-exercise discussion with the witness, a post-exercise interview by the trial consultant can reveal training results that were successful and areas that need further reinforcement. Working in conjunction, the litigator and trial consultant can achieve significant improvement in the performance of key witnesses.

Samples is president of RRS Research, a communications and opinion research agency headquartered in Charleston. He has extensive crises communications, counseling and litigation research experience and has worked for clients throughout the nation during the last 25 years. He can be contacted at rsamples@rrsresearch.com.