Theresa Zagnoli is a founding partner and CEO of Chicago-based litigation consulting firm Zagnoli McEvoy Foley LLC. From her 25-plus years in the field, she shares the communications insights, advice, tactics and skills that litigators can use to effectively advocate for clients and communicate critical information in the courtroom. Reach Theresa with thoughts or questions at firstname.lastname@example.org or 312.494.1700.
In my 26 years as a jury and litigation consultant, I’ve helped nearly 1,500 witnesses prepare for depositions, trials, arbitration and hearings. From those hundreds of hours of sitting in rooms with witnesses and their counsel, I’ve learned that the strongest, most effective lawyers – about 50 percent of those I’ve seen in action — are also the best at communicating the need for preparation.
Lawyers who prepare their witnesses generally follow a similar pattern – they show respect to the person testifying, they insist on the truth and they instruct the witness to talk to the jury or audience instead of to the lawyer.
Perhaps most importantly, they share with witnesses their case strategies, proposed themes and arguments. Doing so gives the witness context of how his or her testimony will strengthen the lawyer’s argument.
A consistent process for prepping witnesses results in strong witnesses. Happily, witnesses of all sizes and shapes want to succeed in their task. Rarely do we meet a personal, professional or fact witness who wants to be embarrassed, lose face, get tongue-tied or otherwise fail the team.
Based on my experience, a good witness preparation team follows these steps:
- Limits the number of people in the room.
- Provides outlines of direct and cross examination questions.
- Schedules multiple sessions, time permitting.
- Allows the witness to do most of the talking.
- Encourages the witness to find his/her own words.
- Takes time to consider visual aides.
- Keeps the witness focused on trier-of-fact.
- Does not denigrate the judge or the jury.
- Videotapes at least one session with the witness. (This step is frequently sacrificed in deposition preparation with the answer “yes” and “no” instruction which is not an issue unless the deposition is being videotaped. There is a fine line to walk between being cooperative versus responding succinctly to the question being asked. If the balance is not found, the witness will seem reluctant and unbelievable on video.)
- Provides honest and critical feedback.
When a witness leaves a session with a good team of communicators he or she will be a little nervous, slightly relieved and will have a bundle of homework. Time constraints aside, people are willing to practice as long as we are willing to teach them something of value.
Communication is not an art, it is proven scientific theory. Smart and successful lawyers employ the science of communication to enhance not only their witness prep, but their practice overall.