Dr. Ken Broda-Bahm | Holland & Hart
Attorneys know the feeling: With some of your witnesses, you just want to keep it simple, encourage them to keep their heads down, and limit the possible damage. With any luck, they’ll get through it with minimal damage to your case. But for other witnesses, testimony is an opportunity. The right witness, and the prepared witness, will be able to say things that advance your case and make it harder for the other side to win. Preparing the right kind of witness is a chance to inflict some damage on the other side.
But how do you know when the witness you have is capable of safely leaving the world of “Yes or no,” and able to enter the world of the artful parry? If you fill the wrong vessel with too much confidence, they could end up missing the meaning of opposing counsel, they could say things that you don’t want in evidence, or they could take it too far by being too clever and too argumentative with the lawyer on the other side. The bottom line is, you need to consciously assess to see what your witness is capable of. If they’re fuzzy or fragile, then you probably want to keep their answers to a minimum. But if they’re tough and smart, then you want to teach them sensitive and smart ways to punch back on your adversary’s questions. It all starts with assessing the witness.
Assess Occupation and Mental Habits
When advising on jury selection, I always feel that if you know what someone does every day, five days a week, you’ve got a good start on knowing them. The same goes for witnesses. If someone works in a repetitive context where they aren’t called upon to exercise judgment very often, it will be hard for them to rise to the challenge of powerful testimony. But if someone works in a context where they’re expected to be analytical, sensitive, and professional, it will be less of a challenge. There are exceptions of course, in both categories, but I’ve found that executives, managers, doctors, and academics will, more often than not, have the native skills to be more thoughtful, assertive, and empowered in the ways they answer opposing counsel’s questions.
In addition to their capability and experience, it is also essential to assess their attitudes. Are they comfortable that they understand enough about the opposing counsel’s tactics and objectives, and about their own testimony, that they can feel comfortable pushing back against that adversary’s language and assumptions? Even if they could, they may not want to. Of course, part of the attorney’s role as a counsellor is to get them to the point that they will do as well as they can. But the legal process can be stressful, and if you add in the force of accusation for a defendant, the psychological barriers can be too high. Alternately, if you have someone who is a little too eager to mix it up with counsel, then they could easily come off as argumentative or evasive when they’re really trying to be assertive. Ultimately, you’re looking for a witness who can be savvy, but also patient and calmly persistent.
Ultimately, the only way to be sure that a witness can effectively testify in a way that moves from ‘not hurting’ to ‘helping’ your case is to see them do it. Hold several practice sessions where you don’t just talk about testifying, but you actually practice it. Play the role of the lawyer on the other side, using as much as you know about their substance and their style, and see how your witness handles it. For very important testimony, I have found that three meetings is often the right number: the first to assess the witness and teach sensitivity in responding, the second to practice it and really nail it down, and the third to see if it sticks after they leave and come back.
Many attorneys will say that giving testimony is largely an act of defense: like being on the receiving side in a volleyball game, you can’t score, but you can prevent them from scoring. That is a largely accurate and useful sentiment. Still, when your witness has the ability, attitude, and training, they could use some assertiveness in both preventing those scores, and maybe scoring a point or two back. It all starts with assessing the witness.