To Prep or Not to Prep – To Mind or Not to Mind

Witness Preparation:

Everybody gives lip service to witness preparation but the reality is different.

There are two schools of thought about prepping (preparing) a witness for a criminal preliminary hearing, civil discovery or criminal or civil trial.

In a multi million dollar fraud trial recently, counsel’s idea of prep was to pat the corporate CEO witness on her shoulder and say “Don’t worry Dear, just tell the truth and you’ll be fine.”

 Not to Prep:

There are several reasons witnesses are not prepped:

  1. The attorney or prosecutor doesn’t have the time or the interest in doing a basic job.
  1. “The truth will out!” The attorney believes that a truthful witness will always be deemed as credible and if truthful, will give strategically important, clear, understandable  evidence.
  1. Their buddy wrote their trial practice exam in law school and they really don’t understand the difference between prepping and coaching. They are terrified of putting words in the witness’s mouth and being accused of coaching.
  1. The lawyer doesn’t understand the evidence, (accounting evidence etc.), that the witness will give and doesn’t want the witness to know how little they really understand the case.
  1. They believe that opposing counsel is their friend and a good chap and will be fair in their questioning.
  1. They worry that if they ask the client tough questions the client will think they don’t believe the client and the client won’t like them any more and their firm may lose the client.
  1. They assign a PA to explain when and where to show up and the PA’s idea of how a trial works and go over the witnesses evidence, but not courtroom tactics. (Note: occasionally lawyer’s PAs are excellent at this, frequently not).
  1. It doesn’t matter anyway, we’re all getting paid.

 To Prep:

  1. Witnesses are under stress and frequently don’t understand the process at all. That stress is exacerbated if they have no real idea what happens.
  1. The witness may not listen to the question, may answer a different question, ramble, get irritated, get angry, or think they can debate the issues with the Judge.
  1. Witness often naively believe they are protected because their lawyer will forcefully object to inappropriate questions, like on TV, where they see witnesses on fencing with the evil opposing counsel, scoring a killer debating point, (opposing lawyer crushed – music resounds, cut to credits), and think this is how to do it.

Preparation alleviates the stress and mitigates the misconceptions of how the process works and what the role of the witness is.   A prepared witness knows what is going to happen, has an idea what they will be asked by both sides, understands how a witness should behave and has at least some idea of how to answer questions.

Even more importantly, the witnesses and the lawyer are both on the same page and the witnesses know what is and what is not expected of them.

IBIS is frequently asked to assist in preparing witnesses. When IBIS preps a witness for trial we do the following:

  1. We act for the attorney so everything is privileged.  We get the specifics of the case from attorney, and the lawyer’s line of questions on the various topics.
  1. If we are not already involved we research and prepare for the case as if it we were presenting the case.
  1. We teach the witness about the Court process, exactly what happens every step of the way, sometimes take the client  on a road trip to a court in session, strategies for reducing stress, how to give a carefully thought out answer, how to be concise, how to handle personal attack questions, and how to handle the “What would you say if I said:” Would you agree with me that:”, How would you describe your feelings towards:” etc., questions.
  1. We get the specifics of the evidence the witness will give, and frequently other information the lawyer didn’t know the witness had.  We determine if they and their lawyer are “on the same page”.
  1. We ask them the lawyer’s questions and some of our own. We discuss their answers for clarity, conciseness etc.
  1. We ask them the opposition questions, at a low key level, increasing the level until we are satisfied they are prepared. We then teach them how to handle the questions, but never what to say.
  1. Budget permitting, IBIS stages an abbreviated, or a complete, mock trial with the witnesses and in some cases focus groups as the jury.

Prepping in a Criminal Case:

It is absolutely horrific to the cause of justice when the Prosecutor in a Criminal case does not prep a witness.

Sadly, in many cases it is not entirely the prosecutor’s fault. The prosecutor got the case that week or sometimes that day and often goes to the preliminary hearings or to trial woefully unprepared themselves because they have not had the time or the initiative to review or understand the case.

Minding witnesses:

Most often, witness are simply told the time and address of the court and told to show up and wait.  Other than that they are on their own.

In the hallway outside the court room, witness do not have anyone with them because: the lawyer doesn’t think of it, if he does he may ask his Junior to check on them before court and show them where the bathroom is and that’s it; there is a perception that budget won’t permit it; if the witness has been served a subpoena, there is no need, they have to be there; or if the witness thinks they need support they can call a friend.

The witness can be left sitting outside a court room for hours in the morning, nodded to by a distracted lawyer rushing past at the lunch break, left again for hours in the afternoon, then told to come back tomorrow, or next week. This can result in unpleasant surprises for the lawyer. At best calling an irritated, unhappy and so thoroughly disgruntled witness that they have forgotten half of their evidence. At worst, a witness who has gotten so disgruntled they have simply left and gone home, never to return barring obtaining an arrest warrant for the lawyer’s own up to that point “friendly” witness, which is unlikely.

Bringing a friend for support:

Witnesses often bring a friend for “support”. Unfortunately the friend is almost always unfamiliar with the process, is angry that their friend is in this position, can be more emotionally involved than the witness), wants to tell the lawyer what to say, wants to “give a piece of their mind” to the opposing parties, (sometimes to the judge) and only creates much more stress for the witness.

An IBIS minder is calmly but positively supportive. The IBIS Minder:

  • Picks the witness up to make sure they show up in court when they are supposed to;
  • Explains the process as it goes along;
  • Explains the excruciating delays;
  • Ensures that the witness doesn’t get so nervous or fed up sitting outside the court room that they bolt for the door;
  • Keeps the witness calm;
  • Takes the witness for lunch;
  • Ensures the witness doesn’t have a liquid lunch;
  • Keeps the witness away from the opposing parties or the opposing parties’ friends, etc;
  • Keeps the witness away from the press;
  • Gets the witness home after court;
  • Gives a witness, who may have to wait for days, a 24 hour number if they need to talk at 2:00 AM.

This blog was written as a result of witnessing all the things that can go wrong and our successes in keeping those problems from happening. I am sure all the lawyers reading this have their own horror stories, and remember, no-one gets up one morning and says: “I would just love to be a witness in a highly contentious case”.