Witness Preparation Often Key to Trial Success

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Oct 19

Trials can turn on any number of factors, which is why predicting outcomes is so difficult.  Trying to account for all of those variables is why trials are so expensive.

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One of the most important elements to trial success is witness preparation.  The only reason to have a trial is to determine the facts.  Those facts are determined by a judge or a jury, often by the testimony of witnesses.

I have been trying cases for a long time and I believe the most important advice I can give to prepare a witness is to listen carefully to the question, and then answer the question but no more.  Stop talking after you have answered.  Do not volunteer any information, no matter how important you think it might be.

Time and time again I have seen witnesses blurt out explanations or statements which hurt their own case.  They should instead try to remember that same warning you see on all the TV cop shows… “Anything you say can and will be used against you.”

Along with my advice to listen carefully to the question asked and then answer it (but no more), I can add, “Do not be afraid of silence.”  Skilled trial lawyers will often use this technique to get witnesses to volunteer additional information.  The lawyer asks the question and the witness responds, only to be met by silence from the questioning lawyer.  It is as though the examining lawyer is saying, “Of course there is more than that.”

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We are not used to these awkward silences in our day to day conversations, but trial testimony is not a day to day conversation.  It is a carefully orchestrated series of questions designed to make the points that each side wishes to make.  Perhaps on a first date there is a need to fill that silence, but not at a trial or hearing.

We try always to prepare our witnesses well.  The cardinal rule in doing so is to make sure they listen carefully to the question and then answer only the question asked.

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