Pointers and Perils of Working with Witnesses
The Bencher | November/December 2022
By Thomas G. Wilkinson, Esquire, and Rhonda M. Fulginiti, Esquire
“Me? I’m dishonest, and a dishonest man you can always trust to be dishonest. Honestly. It’s the honest ones you want to watch out for because you can never predict when they’re going to do something incredibly…stupid.”
—Captain Jack Sparrow, Pirates of the Caribbean: The Curse of the Black Pearl
Working with witnesses is a fundamental skill that every trial attorney must master. Witnesses who are prepared will tend to make their testimony look effortless and credible. When witnesses stumble and become uncomfortable to watch, it is usually because the witnesses are not well prepared or they are lying.
These lessons were on display in late spring 2022 in the high-profile defamation trial between Johnny Depp and his former wife, Amber Heard. For many, the trial over domestic abuse allegations resembled a circus. To the lawyers following the case, the trial was a dumpster fire—a duel over whose witnesses were better prepared. The facts often got lost in the witnesses’ rambling, unfocused testimony. As reflected by an unidentified juror on “Good Morning America,” Heard’s tearful accusations of physical abuse were discounted by the jury because they came to believe that “she was more the aggressor.”
After the verdict, some of the jurors even said that Heard appeared to be disingenuous in the way she interacted with the jury while answering questions. Additionally, the jurors commented on what appeared to be Heard’s “over preparation” (i.e., they thought she was acting, not testifying). The jurors said it made them uncomfortable and looked forced and rehearsed.
So what went wrong? In the end, the jury simply didn’t believe her. In contrast, Depp, although admittedly a man with a history of drug and alcohol abuse and other character flaws, prevailed because the jury believed him. He was sympathetic, empathetic, and not forced. He answered clearly (albeit slowly), and he was prepared for the tough questions on cross-examination. He did not show anger toward opposing counsel, and he did not engage when counsel sought to provoke an irate response. Sometimes we have little control over how our witnesses will testify. But with the aid of careful preparation, their testimony will assist rather than sink a client’s case.
In our own practices, we may never try a high stakes case that draws massive media scrutiny. But our witness preparation will be crucial in telling both a factual story that gives our clients the best chance of prevailing on the facts and on the law. And somewhere in the testimony of our witnesses, there must be a relatability. Without a connection to the jury, the significance of certain facts will be missed and the credibility of the witness diminished. Here is our recommended road map for witness preparation:
Developing a Relationship with a Fact Witness.
According to many psychologists, there must be a balance of logic and emotion in order to communicate effectively. When attempting to prepare witnesses, you must impress upon them that a judge or jury needs to experience those two aspects to truly connect to the testimony. Understanding how to balance the facts (i.e., logic) of an argument, with an emotional component, can be the key to producing effective witness presentations to the trier of fact.
To effectively teach this connection to your witnesses, you must have a connection with them. This takes time. You cannot meet witnesses for the first time on the eve of a trial and expect them to be adequately prepared or to trust you. Testifying during a deposition or in a courtroom is an anxiety-provoking exercise. Witnesses must understand and feel your logic and emotion when you are preparing them. Leading them by example will help them learn the logic-emotion connection. An important component to the development of effective witnesses is making them feel like they are contributing to the litigation team and strategy.
It is important to meet with your witnesses on multiple occasions so they become familiar with you and your style. Make connections with your witnesses—get to know them on a personal level so they know that you care about them, not just the outcome of the case. They need to know that you understand their anxiety and want to help them reduce it. The emotional part of witnesses’ testimony will flow from your relationship with them. The logical part of your witnesses’ testimony will develop from their personal observations of what took place, combined with an understanding of your theme of the case. If either logic or emotion is missing from their testimony, you run the risk that the jury will not relate to, like, or understand your witnesses. It is helpful to give them material to read to assist them for their testimony, such as the American Psychological Association article by Jamie Chamberlin, “Take the Stand: Strategies for Effective Testimony” (Monitor on Psychology, Jan. 2017, Vol. 48, No. 1, p. 56). Print it out for your witnesses and have them read it before they meet with you. They will know what to expect and what questions to ask you during your meetings with them.
As the old saying goes, “practice makes perfect.” Do not attempt to create a script, but it is crucial to rehearse with your witnesses. Before the onset of our new normal during the COVID-19 pandemic (virtual conference calls and trials), we would take our witnesses to the courthouse prior to any trial or hearing. We would have them sit in the witness chair, allow them to view the courtroom, and give them the opportunity to ask questions about the process. This type of preparation is so helpful in relaxing your witnesses and giving them the confidence they need to testify comfortably. If a courtroom visit is not possible, we recommend that you meet with your witnesses in person, ask them the questions you intend to present on direct examination, and prepare them extensively for cross-examination. Helping your witnesses visualize the courtroom, and practice answering the hard questions, is an efficient way to reinforce their knowledge of the facts and the strategy of your case.
We have found that taking this in-person time with our witnesses keeps them invested in the outcome of the case, and it builds a connection with us that may lead to future referrals. Making witness testimony look easy is hard.
Developing a Relationship with an Expert Witness.
Expert witnesses also need to be prepared for their testimony. Oftentimes, because our experts have previously testified, lawyers assume they do not need to be prepared again. Always remember that every case is different. No matter what experience the experts may have had in the past, they need to be prepared for the specific facts in your specific case. They also need to become familiar with your style of questioning them. It helps them to know their overall role in the litigation, not just their specific area of expertise. Further, as with fact witnesses, they need to be prepared for cross-examination. And that preparation must be specific to your facts and deliberate in its approach. Ask them the tough questions that you can anticipate will be asked by opposing counsel.
The American Bar Association Products Liability Litigation Committee’s “9 Tips for Improving the Working Relationship Between the Attorney and the Expert Witness” (Angela A. Meyer, Marta L. Villarraga, and Susan V. Vargas, Practice Points, April 18, 2016) is simple and invaluable. The most crucial items in it relate to defining the scope of the engagement early on in the litigation process and developing a communication style with your experts that works best for your case. Everyone’s time is valuable and expensive, and the client is paying for the time of the experts and the lawyer. Therefore, it is important to be cost-effective in the process of engaging and communicating with your experts.
The more prepared and knowledgeable you are about what the experts need to do for you, the less conflict you will have with your client and the experts over costs and fees. It is critical to have all documents you want the experts to review ready for them as soon as they are retained. Have summaries prepared, in advance, of the facts of the case and the expert report deadlines. Make sure you agree on a budget for the services, including the costs of testifying, well before the completion of discovery. You want to collaborate with your experts—not fight with them. You need to relate to your experts and allow them to educate you on their expertise on issues in your case. You need to respect what they know and the scope and limits of their opinions. The most annoying thing to watch in a deposition or courtroom is a lawyer cross-examining an expert witness and asserting that he or she knows more than the expert in their specific field of expertise.
One of the reasons we hire experts is to educate the jury or judge in a way that fact witnesses and lawyers cannot. But we need to have an intimate understanding of what they are opining to draw the logical and emotional connection described above. Even with expert witnesses who may come across as professorial, that relatability to the trier of fact must be present.
How Do You Know When the Witness Is Ready?
After you have spent time preparing your witnesses, the real question is whether they can perform under pressure. Will they be able to answer effectively and spontaneously under oath? How much preparation is enough? If you have not conducted multiple full run-throughs of your witnesses’ testimony with them, they are not ready. They must be able to repeatedly answer all your prepared questions in a calm and convincing manner. It is also imperative that they experience a practice cross-examination so they know how to handle the key anticipated questions from opposing counsel during trial.
Even if you have spent sufficient time preparing a witness, it will not guarantee a great performance on the witness stand. No matter how hard you have tried to prepare them for the courtroom environment, there is nothing like the stress of being called to the stand to testify in a case. To assist them with getting comfortable outside your preparation, have them do some preparing on their own. A great resource for this can be found on the website for the U.S. Attorney’s Office for the District of Alaska at www.justice.gov/usao-ak/tips-testifying. The site has tips for testifying, such as refreshing your memory, speaking clearly, what your appearance should be, not exaggerating, and listening carefully to avoid confusion. These are all topics that should be discussed in your initial preparation with your witnesses but could be easily forgotten by the witnesses between the time of your preparation and the time of the trial. Giving them something to read during that gap in time can be very useful and can provide them with a “refresher” course immediately prior to their testimony.
The now infamous Depp defamation trial also drives home that relatability to the trier of fact matters. Logic and emotion are crucial to a balance of truth and empathy in a courtroom. Whether it was the testimony of the parties, third-party witnesses, or experts, it is obvious that the jury in the Depp trial was watching and listening carefully. And based on their interviews after the verdict it was evident that, in order to prevail at trial, it was not enough for the Heard trial team to simply recite their competing version of the facts.
It is important to connect with the trier of fact in a truthful, logical, and empathetic way. You will only have so many unique moments in the courtroom when you have a chance to make your points, and your witnesses need to make each one count. As Captain Jack Sparrow wisely observed, “if you were waiting for the opportune moment, that was it.”
Thomas G. Wilkinson Jr., Esquire, is a member of Cozen O’Connor’s Legal Profession Services Practice Group in Philadelphia, Pennsylvania. He is a member of the Villanova Law J. Willard O’Brien American Inn of Court. Rhonda M. Fulginiti, Esquire, is also a member of Cozen O’Connor’s Legal Profession Services Practice Group in Philadelphia. She also serves as an adjunct professor at Widener University Delaware Law School.