Witnesses: Guide Them Through

(Source: Labor Arbitration Institute Conference Reporter 08/15/2019)

At last month’s Baltimore conference, a nationally-known labor arbitrator spoke about witnesses and preparing them for their direct and cross-examination.

The following guidelines (edited for space) make for better witnesses and better hearings.

1.    If your witness signed a statement or affidavit during the investigation phase, have them read it the day before the hearing.

Then, you will ask them on direct examination:  Did you read this before today’s testimony?  Some witnesses will think this is a bad thing.  Reassure them that it’s a good thing.  They have to testify from their own memory, but the signed statement or affidavit was their memory at the time they wrote it.

When I hear witnesses say that their recollection of events today is probably not as good as it was when they wrote the statement, I think that adds to their credibility. 

On a related matter, some witnesses want to bring their personal notes or journals to the hearing.  And they get really nervous if they can’t refer to this material at the hearing.  Tell the witness that anything else they use on the witness stand has to be shared with the other side.  It may reassure them if you let them know that you will take care of everything they need on the witness stand.

2.    Tell each of your witnesses that they cannot talk with others at the hearing.

Whether there is sequestration of witnesses or not, tell yours not to talk about their testimony with anyone else at the hearing.  

3.    “Friendly” cross-examiner.

I know some attorneys who start their cross-examination with, “My name is Fred, can I also call you by your first name?”  or “Would you mind if I used your first name, too?”  Warn your witness if you have an attorney on the other side who is like that. 

4.    Tell your witness the other side may ask you on cross-examination:   Did you prepare for this hearing? 

The question might be:  Did you meet with your attorney and go over your answers?  Or did you talk to your advocate before today?  I have seen many witnesses get nervous because they think talking with their advocate beforehand was a bad thing.  Tell your witnesses that the answer is yes, and that’s what case preparation is.

5.    Explain how objections are handled.

Explain that if they are on the witness stand, as soon as they hear the phrase, “I object,”  or “Objection,” to stop talking.  This is the cue to stop, even if they’re in the middle of the answer.  

During one cross-examination, the other side said “Objection,” but the witness said, “I would like to answer that question.”  In preparation, you might be able to head that off, and combine it with this one:  “I will make sure your testimony will get into the record.  Don’t volunteer information.”

6.  Your testimony fits into the case here.

Many witnesses have never testified before (and probably won’t ever again).  They may believe their testimony will make or break their side’s case.  Explain to them how their testimony fits into the case.