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Friday, April 26, 2013

Your Skills: Elicit the Information You Need

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Gail E. Silverstein

To obtain an individual to corroborate a part of your client's case — to bear witness — is a true feat of aligning your client's narrative with "the truth."

The article is reprinted with permission from the April 26, 2013 edition of The Recorder

by Gail E. Silverstein

Any lawyer who has investigated a client's matter knows that there are plenty of cases where it is problematic, if not impossible, to find such substantiation. Yet the acquisition of a witness is not sufficient. In order for the witness to be effective, and not damaging, that individual needs to be prepared.

Preparation of witnesses can evoke worry in new lawyers concerned with the ethics of practice. This concern is not without foundation. After all, there are many countries and international tribunals that disallow full preparation of witnesses, as they believe the lack of spontaneity in terms of content and presentation affects courts' truth-finding capacities. Yet in the United States, witness preparation is a customary standard of lawyering practice. While the California Rules of Professional Conduct 5-310 precludes payment of witnesses predicated on specific testimony or a case's outcome and prohibits the lawyer's involvement in making a witness unavailable, no other rules specifically mention witnesses. That said, lawyers do have an overall duty to utilize "those means only as are consistent with the truth and never to seek to mislead the judge or any judicial officer by an artifice or false statement of facts." Bus. & Prof. Code §6068(d)

The best method of witness preparation will depend on the type of legal proceeding, the individual who is being prepared and her experience level, what is necessary for your specific case, and your personal preferences. Preparing experts to be witnesses in a deposition is a different beast than preparing your client for an administrative hearing. A divorce attorney may be preparing a child to testify, while a criminal prosecutor may be calling a victim to the stand. Moreover, how much time and money you have to devote to the effort will also affect the depth of your preparation. Some firms hire witness consultants; others utilize mock trials for certain cases. Some prepare weeks in advance; others do the age-old "horse-shedding" of the witness outside the courtroom on the day of trial.

Cutting across all these variations, however, there is a basic outline to every witness preparation process consisting of three main components: orientation, content and presentation. Each component is vital to the whole. Underlying these three components, however, is a key ingredient to all good witness preparation: building rapport with your witness. By investing in creating a genuine, respectful, empathic relationship, you will create the foundation essential for the witness to trust and accede to your preparation advice.

ORIENTATION
Unless your witness has been to court or a deposition repeatedly, orienting her to the legal proceeding, the parts she and the other participants play, and the rules involved is crucial. Witnesses are often intimidated by the proceeding, do not know what to expect, and are either too embarrassed or lack the requisite knowledge to know where to begin in asking basic questions. This intimidation can cause the witness to, at worst, not follow through in providing testimony, or present as nervous and unsure. Because you want the witness' testimony to come off with the confidence that is the hallmark of the truth, you want to do what you can to prevent such behavior.

CONTENT
You have chosen your witness to testify to certain legal elements of your case and/or to present thematic or narrative aspects of the case. Witnesses should understand the broad context of their testimony so they understand conceptually the goals of their role. It is perfectly appropriate to give both a legal and factual context. Once they have this comprehensive understanding, the specific questions you pose to them and the answers they give can be more readily understood. Moreover, this general sense can help them respond effectively to questions they have not been prepared for either on their direct testimony or cross examination. They should also be reminded of any prior testimony or statements that they have given with the idea of remaining as consistent as possible.

In the UC Hastings Civil Justice Clinic's Individual Representation clinic where I teach, we have students help witnesses prepare by creating a three-columned document: The first column indicates the question you are going to pose; the second indicates the facts you are trying to elicit; the third indicates any source where that fact already exists and is a place where you can indicate a response to any potential objections. This document will change as you figure out the appropriate question that elicits the facts that you want out of the witness in the most effective manner. Also, in preparing this document, we also ask students to list on the top of the document the main objectives for the testimony. By going through this exercise, you can help to keep yourself focused and be able to effectively prepare the witness for general and specific consistent content and any potential objections. Moreover, this document can help you when — despite preparation — a witness becomes nervous at the official proceeding and you need to rein her in and help her regain focus.

PRESENTATION
Even with an orientation to the proceeding and role and an understanding of the content of their testimony, most witnesses still need assistance with imparting their testimony effectively.

Presentation is partially about what the witness says. You want your witness to tell the truth. You want her to listen to the question and narrowly answer the question only. You want her to not guess her answers. You also want her to effectively answer anticipated difficult questions, to know how to correct a mistake, and to understand what to do when an objection is made. Reassure your witness that you are there to help her during her testimony and that it is your job, not hers, to outmaneuver the other side.

You can tell these "rules" to the witness as part of your orientation presentation to her. Then, when you go over her testimony, you can further emphasize them when appropriate in the context of when they are coming up. This lesson was highlighted for a pair of my students when during the course of a preparation for a witness for a deposition, simply instructing our client on the importance of guessing was not enough; the students had to point out each time she guessed for her to comprehend the instruction. As you go over the testimony, you can also practice certain expected or potential situations, such as playing opposing counsel, raising an objection and seeing how the witness responds.

The other part of presentation is the way the witness delivers her testimony. Be sure to comment on, if necessary, your witness' tone of voice, volume and speed of delivery, use of facial expressions, dress, emotions and nonverbal aspects of her testimony, such as whom to look at when testifying.

In the clinic, we have students prepare their witnesses at least twice, although the exact number of times will depend on what is necessary for that particular witness. This preparation consists of not only going through the direct testimony, but also mooting the cross-examination. Mock cross-examination can hurt the rapport with the witness, so whenever possible, we have someone who does not know the witness perform the cross-examination. When going through either direct or cross, we stop after a chunk of time to debrief how the testimony went and give any advice.

New attorneys often express apprehension that in-depth preparation will make the witness appear artificial and trained. Our clinic has found the opposite. We have found that it helps the witness and the attorney feel more confident and credible when both are well-prepared for the actual presentation of testimony. This preparation translates into the most effective utilization of the witness, and ultimately, successful lawyering.

Gail E. Silverstein is a clinical professor at UC Hastings College of the Law. She teaches in the college's Civil Justice Clinic.

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