Fundamentals on Witness Preparation

(Source: Conference Reporter Newsletter 04/11/2019)

At the Tampa conference last month, the speaker covered the topics of direct & cross-examination.  A key part is the preparation, and here are his five points.  The preface to each point is:  Tell your witness to. . . .

1.    Tell the truth.

It seems obvious, but not to everyone.  With some witnesses, you may have to go further and advise them that there will be cross-examination, and if the other side catches you in a lie, you’ll probably have to tell another lie to “get out of” the first one.  And once you go down that road, it’s impossible to get back on track.  

Some witnesses will think that they’re helping your case by lying.  You can reassure them that the entire case is not built on their testimony alone and if they are caught lying, their testimony is worthless. 

Here’s another way to give this advice:  There have been interviews, investigations, and statements taken.   The purpose of the grievance procedure was to uncover all of the facts and arguments.  At the arbitration hearing, the advocates ask questions about what is already known.

2.    Remember, you will be under oath.

Consider this from the witness perspective.  They walk in to the hearing room and see people they know.  They think it’s going to be a friendly conversation.  The only person they don’t know is the arbitrator.  And the first thing the arbitrator says is, “Raise your right hand to take the oath.  Do you swear / affirm to tell the truth, the whole truth, and nothing but the truth?”

This has happened often:  the witness looks surprised, thinking that this would be a friendly conversation.

3.   Say “I don’t know” when that’s true.

A witness can only testify to what they know.  Many witnesses need to be told that “I don’t know” is a perfectly fine answer.

4.    Listen to the question and just answer it.

This also seems simple, but many people are nervous or focus hard on what they want to say.  In fact, their focus is so intense that they listen only for the general area of inquiry, and then spew what they planned to say.

5.    Ignore the tone of the question.  

A favorite of cross-examiners is to sarcastically ask:  “Are you trying to tell this Arbitrator that . . . ” OR “Is it your testimony that . . . “

Tell the witness to not get thrown-off by the tone of the question.  

A cross-examiner may also try to limit your answer to a “yes” or “no.”  There is a third answer, “Yes, but . . .”  And you can explain why it’s a partial yes or a partial no.  The cross-examiner might try to stop you from going further, but the arbitrator will either allow you to give your complete answer at that time, or I will do so on re-direct examination.