The day before or the morning of your witness' testimony is not the time to review case documents or perform practice questions. With witness performance holding tremendous significance over settlement and verdict results, it stands to reason that attorneys want their witnesses to be as prepared as possible. However, the 24 hours prior to testimony is not the time to be doing any heavy lifting when it comes to witness preparation. 

Your 24-hour witness preparation checklist should instead consist of rest, confidence building, and focus. Just like a coach doesn’t try to review the entire playbook with their team the night before a game but instead focuses on just the key points, an attorney should similarly hone in on the key points for their witness. Ideally, these witnesses have already gone through a thorough witness training program, and now, just before their testimony, is the time to focus on strategy and the crux of what needs to be accomplished. 

What areas should you discuss with your witness prior to testimony?

Your 24-hour witness preparation checklist should include these four items to review with your witnesses: control the pace, only say what you know, don't volunteer information, and use periods. Keep in mind that witnesses need to be energized when they show up for their testimony, not overworked and exhausted. Keep your witnesses focused, and make sure you aren’t overwhelming them with information in the last 24 hours.

#1: Control The Pace 

The first thing that a witness needs to do is control the pace. The attorney will likely want to fire questions at a fast clip, but that’s where witnesses frequently get into trouble. When witnesses go too fast, they minimize cognition and are prone to making more unforced errors.

The witness needs to be able to take their time after a question, on average, two to five seconds, depending on the sophistication of the question. If the witness can control the pace, it will increase the accuracy of answers and help them keep their emotions under control. Slower is better; controlling the pace will allow witnesses to deliver the most effective response. 

#2: Only Say What You Know 

Witnesses are notorious for guessing. Often the problem is that people, in general, feel bad for not knowing something, and they may feel embarrassed for having to say ‘I don’t know,’ or ‘I don’t remember.’ The problem, of course, is that if they agree to something, even if they were only 85 percent sure, now it’s 100 percent true in their testimony. When witnesses start agreeing with things, they are not only at risk for beginning to conform to opposing counsel's themes but could lead to inconsistent testimony across witnesses. 

Instead, witnesses should be reminded that before they say ‘yes’ or ‘I agree,’ they must know what they are talking about. They don’t need to be embarrassed for not knowing or not remembering; it’s better to say what they know than to risk blundering into one or more major concessions. 

#3: Don’t Volunteer Information 

Long answers frequently lead to a witness volunteering information that was not in the original question. This invariably leads to extended questioning for the witness. Often long answers from witnesses can become disorganized, causing the witness to fall off track and fail to answer the original question. There is also a risk that by volunteering information, a witness may bring up some new information that the opposing counsel had no idea existed.

Instead, the goal for the witness is to provide accurate and concise answers. Witnesses may fear providing simple one-word answers without additional explanation. Yet, witnesses are generally better served by taking the “shortest answer possible” approach when questioned by the opposing attorney. They can rely on their attorney to help frame any subsequent details later as part of a well-organized direct examination. 

#4: Use Periods 

An answer that includes a comma followed by but, because, or however fuels the counter-attack and is exactly what the opposing attorney wants. This defensive explanation is an invitation to further questioning and generally comes across as defensive, evasive, and argumentative. 

Witnesses should instead extinguish counter-attack opportunities by only giving short, concise answers. You may need to remind witnesses that they are not there to teach, argue, or defend. If a concrete fact is identified in a question, the answer should be akin to ‘yes, that's true,’ and then the period, end of sentence. Witnesses should be honest and truthful, but at the same time, they need to be succinct and to the point.

At Courtroom Sciences, our behavioral experts help witnesses give confident, strategic answers that will not leave them vulnerable later in the testimony. Our psychology experts deliver sophisticated neuro-cognitive training that will leave them poised, confident, prepared, and persuasive. Speak with one of our experts to get started.

Key Takeaways

●  Your 24-hour witness preparation checklist should include these four items: control the pace, only say what you know, don't volunteer information, and use periods.

●  Witnesses need to be able to take their time after a question, on average, two to five seconds, depending on the sophistication of the question. 

●  Witnesses should only say what they know rather than risk blundering into one or more major concessions. 

●  Witnesses should provide answers that are accurate and concise to avoid volunteering information. 

●  Witnesses should extinguish counter-attack opportunities by only giving short, concise answers.