Preparation of Witnesses May Well Determine Company’s Fate at Trial

By George Lyons and Nancie Poppema

The scene is becoming typical: Returning from a meeting, corporate counsel encounters an investigator from a regulatory agency who wishes to speak to the company’s president, vice president for operations and chief financial officer. Later, the investigator interviews several of the company’s managers in a fact-finding search.

The manner in which these people respond to probing questions can determine the fate of the investigation. In turn, this can determine the fate of counsel and the entire organization throughout ensuing regulatory proceedings and litigation.

A corporation’s officers and managers need the skills to develop and communicate powerful arguments that can strengthen all aspects of legal proceedings: audits, discovery, depositions, hearings, trials, regulatory proceedings and alternative dispute resolution.

When an organization has a lot at stake, witnesses must be extraordinary – honest, believable and able to score points for the organization’s case. The ideal witness follows three basic precepts: He or she tells the truth, is helpful under fire and stands ground on important points.

A team of the sharpest legal minds in the country may have the best case, the best strategy and the best evidence. But if they don’t have the best witnesses to carry it through, the case can still unravel. Attorneys spend hours preparing witnesses for cross-examination. Witnesses diligently read piles of documents, confer with counsel and staff and undergo hours of mock cross-examination. Yet once the witnesses are on the stand, their own attorneys can be surprised by what will come out of their mouths.

Expert witnesses are no exception. Although both in-house fact witnesses and outside expert witnesses are chosen for their specialized knowledge, this doesn’t necessarily mean they make great witnesses. If the knowledge that witnesses possess is not expressed in a fashion which the judge and jury can understand, it is lost.

The Development Process

An increasing amount of attention is being given to the “development” of witnesses so that counsel can be confident their testimony will help the case, not destroy it.

Witness development involves changing the way witnesses think and react to the pressure of the courtroom. This means more than simply a change in their cosmetic appearance. There needs to be less emphasis on witnesses “looking good” and more emphasis on “being good.”

Too often, witnesses are “coached” to give the right answers, to look at the right people and to dress in the right manner. Coached witnesses are not natural; eventually they lose credibility, and the company loses points in the case. It is better to develop witnesses than to coach them – to give witnesses the tools to organize and deliver powerful testimony under the unpredictable pressure of cross-examination, rather than simply teach them the “right” answers.

A witness development program is designed to build the “total witness,” not merely to supply certain answers without foundation or credibility. Witnesses cannot be told what to say; wordsmiths have no place in developing witnesses. Honesty will prevail if it is credibly presented.

A witness development program should include several carefully mapped-out stages of preparation. The program might consist of six stages:

  • Witness development planning
  • Benchmark cross-examination
  • Issue resolution
  • Models or methods of organizing responsive answers and defending hostile attack
  • Practice
  • Graduation

The first stage of the program, witness development planning, is an interactive process that involves legal counsel, communication professionals and witnesses.

Legal counsel first should recognize the significance of the problems, analyze the extent to which witnesses’ testimony will affect the case and begin to assemble a winning team. Communication professionals acquire a knowledge of the case from counsel and potential witnesses. If counsel makes a communication firm part of the legal team, instead of having the communication firm work with witnesses independently, there is a greater chance that such work will be privileged from discovery.

Early in the planning process, each potential witness should be asked to write 20 to 25 questions that he or she hopes never to be asked about the case. Not only does this exercise reveal vulnerabilities that previously may have escaped legal counsel, it also brings to light areas in which the witness may have unfounded concerns. Such areas of concern otherwise might erode the witness’s confidence if kept in the dark until raised on the witness stand.

Exposing Weaknesses

The second stage, benchmark cross-examination, is a preliminary exercise in mock cross-examination that takes place before the actual business of witness preparation begins. It should quickly point out weaknesses in witnesses’ skills or knowledge and is essential to track progress.

This “cold turkey” exercise needs to confront the most sensitive issues facing the witness. As with almost all stages of communication development, the exercise should be videotaped so that the witness can see and assess his or her performance.

Although some outside attorneys are hesitant to play the role of a really tough opposing counsel for fear that this will cause the client to dislike the attorney, doing so is necessary to help ensure that there are no surprises on the stand. Corporate counsel should give outside counsel the green light to flush out sensitive issues quickly and pointedly during benchmark performance. This is the only way that progress can be made in fortifying the case.

After benchmark cross-examination, witnesses are ready to proceed to the third stage, issue resolution. Sometimes witnesses believe that attorneys are supposed to prepare answers to questions for them and then tell them, word for word, what “the company line” is. This is an ineffective approach, because witnesses often possess a more intimate knowledge of the issues than do their attorneys, and because witnesses need to use their own words and thoughts while on the stand.

It is better for witnesses to work closely beforehand with legal and communication professionals to resolve case issues. This starts with a list of allegations for each witness to address. This list is drawn from information gathered in the first two stages of the witness development process and is enhanced by legal counsel’s input.

For each allegation, the witness should determine a definite position — the highest ground that can be taken to counter the allegation. The “high ground” position needs to be bold, honest, positive and written as succinctly as a news headline.

After that, the witness should write down the two or three most compelling pieces of evidence that support the high ground position. Because witnesses need to remember case positions and facts easily on the stand, these pieces of evidence are most valuable written as bulleted points, not as novels.

Summaries of single allegations and corresponding positions with supporting evidence should be limited to one page per issue. These summaries can be used as flash cards to refresh a witness’s memory. Counsel can use them as well, to check for compatibility with case strategy, to know how the witness plans to respond and to determine if there are conflicts in any witnesses’ positions. In general, determining for themselves the high ground, backed up by compelling evidence, makes witnesses more confident and convinced of the company’s case.

Planning Model Answers

The fourth stage involves developing models or methods for organizing responsive answers, defending against hostile attack and building solid testimony.

Such models should be easily pictured and usable under pressure. Most fact witnesses and expert witnesses for corporations are analytical by nature; they examine situations from several angles before coming to a conclusion. But when this way of thinking is carried into the courtroom, it leads many witnesses to try to explain the answer before ever giving it: “In order to answer your question, counselor, one must understand the operating hypothesis, guiding assumptions, and methodology…”. At best, the trier of fact is bored; at worst, the witness appears evasive or ignorant. And when the witness is instructed, either by counsel or a weary judge, to “just answer the question,” he or she may become frightened.

To avoid having witnesses “wing it” on the stand, a framework or model for organizing responses is crucial. While some witnesses immediately want to provide pieces of evidence – facts, statistics and raw data – knowing the high ground and stating it up front in their answers will score more points in the case.

This simple model may be helpful: direct answer plus high ground position plus easily understood evidence. Corporate and expert witnesses need something to hang on to that will lead them from the swamp of opposing counsel’s questions to higher ground.

The difference between the two approaches is evident from these examples.

Without a model:

Q. And did your company subject these one-inch bolts to destructive testing to determine whether or not they would support the enormous weight of this roof [pointing]?

A. No.

Q. And management did not tell you to undertake such testing, did they?

A. No.

Q. No further questions.

Using a model:

Q. And did your company subject these one-inch bolts to destructive testing to determine whether or not they would support the enormous weight of this roof [pointing]?

A. No, our supplier is required to conduct such testing, and that is a standard practice for our industry.

Practice Under Fire

The fifth stage consists of practice. As with any other skill, formulating answers under fire needs to be practiced for learning and retention to occur.

This does not mean that specific answers should be formulated and practiced by rote. It means that the method of formulating answers should be practiced with a variety of case issues.

Several sessions of practice cross-examination and mock trials are necessary in order for change to happen genuinely. The opportunity to practice these methods on videotape is essential for progress. It is valuable to employ a diversity of attorneys to simulate various styles of questioning. Corporate counsel and outside counsel take turns or “tag-team” the witness; in addition, outside counsel can bring in other litigators from the firm who are not involved in the case.

Witnesses also benefit by cross-examining each other. Not only do they know the technical aspects of the issues and where skeletons are hidden, they also gain insight on how opposing attorneys think. This helps many witnesses feel less fear regarding opposing counsel. It also gives counsel an opportunity to sit back and watch the witness under what is generally grueling cross-examination.

The sixth stage in the process, graduation, comes when witnesses put all their new skills together and are comfortable handling any line of questioning from any type of questioner. The graduation exercise is a mock trial. At this point, the courtroom proceedings and environment should be simulated as closely to reality as possible. Witnesses should be given a tough and realistic workout and should discover that use of their skills lead to success.

Additional Guidelines

There is a wide range of criteria and guidelines for establishing an effective witness development program. Here are some additional observations:

A group of witnesses should be treated as a team, rather than as a number of individuals who are simply a part of the same case. Developing witnesses together not only creates a united front and increases synergy, it also dramatically strengthens a case.

Team meetings and formalized witness development sessions should be run in a facilitative style rather than a directive style. For example, saying “You have to use the XYZ study in this answer” is directive. “What example can you give that proves your point?” is facilitative.

Witness development is an intense program and works best when it is held in a retreat environment. Witnesses should be immersed in learning the skills that will modify their behavior, without distractions from the office or home. A retreat allows for the greatest amount of permanent change in the shortest time.

As indicated above, programs should be video-based. Using at least 70 percent of session time for on-camera work gives witnesses ample opportunity to discover what works for them. Attorneys and communication consultants can tell witnesses the effect of their testimony a hundred times, but only when witnesses see it for themselves do they internalize it.

Witness development works only if it is based on performance. Therefore a laboratory environment produces a better witness than a lecture. Witnesses learn by doing and discovering. Once a piece of advice is given, the witness benefits by trying it out immediately.

Corporate counsel is uniquely positioned to assess those cases in which the corporation’s future depends on testimony of a select group of witnesses. Such situations require the best witnesses, prepared to honestly answer tough questions while enhancing the overall case strategy. Witness development is best undertaken using a logical, systematic approach. A successful witness development process will provide a lasting benefit to in-house counsel and to the corporation as a whole.


This article originally appeared as a special to The National Law Journal.

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