Effective Witness Preparation in the Digital World

September 16, 2024 Darin M. Klemchuk

Strategies for Effective Witness Preparation

While the dawn of AI has just begun and social media has been around for decades, allowing people to communicate without being in person, the basics of effective witness preparation could not be more important today. Whether it is a deposition of a key fact witness, cross examination of an expert, or the testimony of a company representative at trial, the following strategies and tips are worth considering to improve witness performance in the digital age.

Witness preparation is one of the most difficult tasks a lawyer faces because it is the moment — similar to the jury receiving the charge — where the lawyer gives up all control. Sure, you can object during a deposition, but no amount of legitimate deposition objections is going to save a poorly prepared witness. The following is a detailed discussion of practical strategies and tips I have developed practicing intellectual property litigation and commercial litigation since 1997.

Basics of Witness Preparation – The Rules

Typical “Rules of Examination”

The following is a list of general dos and don’ts for witness testimony. I often see examining attorneys attempt to go over some of this list and attempt to get a witness’s agreement to these “rules” during depositions:

Do not volunteer during the deposition.
Pause before you answer the question. This allows the defending attorney to object or instruct you not to answer based on a privilege. If you answer too quickly, that may waive an objection or privilege.
Do not talk over the examining attorney. Allow the attorney to finish his/her question completely before you begin to answer.
The court reporter cannot record non-verbals, so your answer must be audible.
Do not guess. If you don’t know the answer, that is your answer. Anything beyond that is guessing.
Answer the question asked. Do not try to help the examining attorney. That will not make the deposition end sooner.
If you do not understand the question, it is best to ask for clarification or state that you do not understand the question. Otherwise, you make be guessing.
Be calm and patient. You likely cannot win the case in your deposition, but you can definitely hurt the case if you get emotionally aroused, combative, or overly evasive.
If you need a break at any time, make a request.

While not in this list, the witness should be thoroughly counseled that (i) he/she will be answering questions under oath and (ii) there are consequences for committing perjury.

What Does Witness Preparation Include?

In addition to discussing the “Rules of Examination,” witness preparation can include:

Educating the witness as to his/her rights and obligations as a witness, which includes the duty to tell the truth and the consequences of perjury.
Establishing goals for a particular cross examination or testimony. This includes legal and evidentiary issues that bear on the case.
Guiding the witness on professional appearance, etiquette, and the overall examination process.
Reviewing the facts, law, and progress of a matter.
Engaging in witness preparation and mock question-and-answer to provide the witness feedback on performance and avoid any surprise questions or ambushes.
Reenforcing the “Rules of Examination” following mock questioning.

It is important to note that coaching a witness can lead to serious adverse consequences, so the tips in the article should only be used to assist with accurate witness testimony, not attorney-supplied answers. While many lawyers would be appalled that a lawyer would coach a witness or direct their testimony, I experienced opposing counsel doing just that during COVID when depositions were often taken remote over Zoom. I caught one lawyer doing that where the witness was seated in front of a television screen. The lawyer’s assistance could be seen as a reflection on the TV screen.

How Non-Verbals Affect Witness Performance and Preparation

As they say in poker, everyone has a “tell.” Since most depositions are at least 6-7 hours without breaks, an experienced examining attorney has plenty of time to analyze a witness to discover his/her tell. As part of the preparation process discussed below, it is worthwhile for the defending lawyer to help a witness discover their non-verbal cues and stress responses. These can include a change in tone of voice, change in speed of talking, refusal to make eye contact or looking away from the examining lawyer, a nervous cough, over volunteering, and evasiveness. Practice under the tension of mock question and answer sessions can help provide a witness with feedback on their non-verbal cues. Video recording is an additional helpful tool.

Preparing Expert Witnesses for Examination

All of the witness preparation tips in this article apply equally to expert witnesses, but they have a unique challenge that fact witnesses do not have — they submitted a written report with their opinion(s) contained in it. This makes the expert ripe for two kinds of attack. The first is a question such as “Is everything in your report accurate?” or some variation of that question. The second is that all expert reports have at least one opinion with at least one supporting assumption. If the assumption is not accurate, it is possible that the opinion may also be inaccurate.

In addition to the steps outlined in this article, I recommend deconstructing the opinions, assumptions, and accuracy of the report before an expert is examined.

Psychology of Witness Testimony

Having taken hundreds of depositions, I have noticed that poor witness performance typically falls into one of two patterns: (1) “Talkative Ted,” who rambles, volunteers, and offers guesses after stating “I don’t know” to a question (no matter how many times you have pointed that out) and (2) “Evasive Eddy,” who cannot provide a straight answer to even the most basic question. I think this ultimately comes down to the witness’s stress response. While I have significant witness preparation experience, I have not always been accurate in picking which of the two patterns a particular witness will adopt on the stand or in a deposition.

Based on this experience and as part of the witness preparation process, I explain that stress management is a key factor in success as a witness. Another key factor is awareness of one’s stress response so it can be managed. The most effective way to accomplish this is to put the witness under stress in multiple different situations to observe how they respond. As I discuss at the end of this article, for important examinations, it may be worth hiring a skilled trial lawyer outside your firm to be the “opposing counsel.”

Now that you have several reps with the witness, you are in position to counsel them on their stress response. This is important in multiple ways. First, an aware witness is in a better position to perform when it counts than a witness who is ignorant of their stress response. Second, if the witness starts reverting to their stress response — Talkative Ted begins guessing and volunteering on topics he knows nothing about — that is a good sign that the witness may need a break psychologically. Finally, repetition that demonstrates progress builds a witness’s confidence. Confident witnesses tend to perform better under stress.

Helping a Witness Manage Attention to Achieve Stronger Results

All witnesses (not just Talkative Ted and Evasive Eddy) can benefit from attention awareness coaching to get better examination performance. A simple tool is breath awareness. In the military, we used a breathing technique to maintain a balance between alertness and calmness: sync your breathing to 5 seconds in, pause, 5 seconds out, pause, and repeat. If the witness is needs to reduce stress, he/she can lengthen the exhale segment to 8-12 seconds. This works physiologically in the body by calming the Vagus nerve.

Other tools that have been shown to improve performance include:

Maintaining a positive internal dialogue throughout the examination;
Positive visualization before the examination to get reps on performance and build confidence;
Developing a mantra to recognize and release slip ups, bringing attention back to the examination performance; and
Breaking down the examination into manageable chunks, such as taking one break at a time, rather than projecting the current situation over the next six hours.

I realize not all witnesses will be open to these tools, but the successful use of just one can lead to significantly better performance, particularly with anxious or high-strung witnesses.

Social Media Searches to Uncover Potential Land Mines

At this point, you have walked the witness through the “basics of witness preparation,” discussed substantive legal issues, and, hopefully, conducted a few trial runs at questioning to give feedback and predict their behavior under stress. If you have done all that, you have done more thorough preparation than most lawyers.

For high-stakes litigation, you may want to consider another step in the preparation process—conducting a social media and online search of the witness to uncover any embarrassing information or other potential land mines. This research step can include:

Conducting a social media research;
Conducting an internet footprint search;
In the case of experts, reviewing past publications, articles, videos, promotional/marketing materials, and reports, if available;
Background checks; and
Deep background checks using a private investigative firm.

Witness preparation can address any issues uncovered in the search.

“Controlling the Controllables” – Unpredictable Witness Behavior

Humans are unpredictable creatures. You could follow all the various witness preparation strategies and tips in this article and still get an unfavorable outcome.

Many years ago, I prepared a witness for a key deposition testimony in a commercial litigation case. We knew plaintiff’s counsel was lying in wait to spring several tough lines of questioning on our witness. After going through my “basics of deposition testimony” multiple times, confirming over and over again with the witness that the best we could do is a neutral result (e.g., it wasn’t possible for him to “win the deposition”), and covering all of the key substantive legal points for the deposition, he bragged multiple times on the drive to the plaintiff’s counsel’s office just an hour later how he was going to win the deposition and the case. As you could imagine, the deposition did not go well. I share this point because some witnesses cannot be helped either due to ego, ignorance, performance anxiety, or inability to handle the pressure of cross examination. You can only do the best you can do.

As for controlling the controllables, defense counsel needs to remember that their state of mind is also a significant factor in a witness’s performance. Witnesses look to their lawyers for cues as to their performance, so we need to keep a cool head at all times despite unpredictable or crazy behavior. Here are a few examples of deposition stories where the unexpected took place:

1) NLP and Witness Testimony – Many years ago, when I was a mid-level associate, I prepared a couple witnesses in a theft of trade secrets/non-compete case. During the preparation, the witnesses agreed that certain things did not take place. They were crystal clear on this fact before the opening question. However, the examining attorney used a head nod (the “yes” signal) and other rapport building tools to somehow get the witnesses to say “yes” to what they told me never happened. They didn’t realize until we were on a break that they unwittingly admitted to what they said never happened. To this day, I don’t know if this lawyer was intentionally using neuro-linguistic programming (NLP) or just got lucky. Regardless, he is still one of the most formidable deposition takers in my career.

2) The Swearing-In Incident – In a video deposition I was defending, the witness was asked to raise his right hand to be sworn in. The witness raised his left hand instead of his right hand. This put me in quite a quandary because if I pointed it out, that would have highlighted the situation and the video would have captured him switching hands, making him look less than above board. If I said nothing, he failed to follow instructions. I ended up letting it go. He was wiped out in the deposition.

3) Pre-Deposition Fight – In another case, my witness refused to be sworn in because the court reporter asked him to “swear to tell the truth…” and he objected to swearing. After multiple breaks, discussions, and threats of sanctions, we compromised with “affirm to tell the truth.”

4) Hearsay – One of my favorite deposition obstructions was when the defending lawyer objected to the question “State your name” on the grounds that it was hearsay. I know this is improper, but legally interesting nonetheless since technically the witness’s name appeared on a birth certificate.

I share these stories to highlight the fact that cross examination is an unpredictable environment even with the best preparation.

Investing in Mock Cross Examination to Prepare a Witness

For key testimony or witnesses, it is worth considering live, mock cross-examination exercises. In my experience, someone on the trial team is selected to be “opposing counsel” to prepare mock cross-examinations on the key points. Videotaping the question-and-answer sessions provides useful feedback not only on the substance of how questions are answered, but also on the equally important non-verbal behavior during the examination. The witness can practice multiple rounds of questioning and feedback to build confidence and improve their performance.

Depending on the situation, it may be better to select an experienced trial lawyer, who is not on the trial team and is unfamiliar with the witness. This minimizes the chances of bias diminishing the value of the exercise. One example is where a junior lawyer at the firm does not want to make the more senior lawyer, who prepared the witness, “look bad.” Retaining a lawyer outside the firm, whose sole motivation is to play hard in the examination, is likely to lead to the best outcome since it eliminates most biases and assumptions.

Key Take Aways Regarding Effective Witness Preparation in the Digital Age:

1) Start with a thorough discussion of the Basics of Witness Preparation — “The Rules”. As anyone who has taken even a few depositions knows, most witnesses fall short of following these rules.

2) Expert witness preparation requires additional steps to confirm the expert’s opinions, underlying assumptions, and report accuracy.

3) Non-verbal behavior can undermine what would otherwise be technically strong testimony. Most of these appear subconsciously from the witness. The best way to improve and manage these behaviors is mock question and answer exercises, preferably video recorded.

4) All witness performance can be improved by understanding a witness’s natural stress response and using one or more of the attention management tools discussed in this article.

5) For key witnesses, a thorough social media and internet footprint search may be considered as part of the preparation process.

6) Counsel should keep in mind that their own reactions may affect witness performance, so it is very important to focus on controlling the controllables.

7) Finally, hiring an outside lawyer to act as opposing counsel for mock question-and-answer exercises is worth the investment for key examinations and witness preparation. An outside lawyer eliminates the trial team’s inherent biases and may uncover weaknesses not considered by defense counsel, either due to the outside counsel’s unique perspective or their lack of an established theory of the case.

For more information about IP litigation and commercial litigation, see our intellectual property litigation practice page.

Klemchuk PLLC is a leading IP law firm based in Dallas, Texas, focusing on litigation, anti-counterfeiting, trademarks, patents, and business law. Our experienced attorneys assist clients in safeguarding innovation and expanding market share through strategic investments in intellectual property.

This article is provided for informational purposes only and does not constitute legal advice. For guidance on specific legal matters under federal, state, or local laws, please consult with our IP Lawyers.