By Hon. (Ret.) Ken E. Adair
Prepare Witnesses to Tell the Truth
Video Transcribed: How many of you coach your witnesses and your clients, what to say under oath? Now I’m sure most of you will say, “I don’t do that.” But the truth is, there’s a huge difference between coaching a witness and preparing a witness, to tell the truth in a way that it’s going to be effective. And that it’s going to be embraced and believed by a jury or other finder of fact.
The huge difference between coaching and preparing. When you coach a witness, you tell them what to say. And if the words you choose for your witness or your client don’t resonate with that witness or the client, they’re going to come out dry. They’re going to come out ineffectual. So what you do is you sit down, take the time to visit with the witness. Find out what is going on. How do they feel?
How did it feel when that happened? How much did it hurt? How did it hurt? How often did it hurt? And a lot of witnesses and clients are the best clients. The best clients aren’t whiners. The best clients are not trying to hit a home run or win a lottery ticket. Those are the best clients. And if you have one, try to get those to trial. If you have a client that is a whiner, that’s trying to get a home run, make sure you let them know, that doesn’t sound right.
That doesn’t sound believable, because you don’t want them getting defensive on the witness stand under cross-examination. Explore what the truth is with your client. If they say something that’s inaccurate, if they say something that doesn’t make sense, be kind to them. Be compassionate, but explain to them that doesn’t really make sense because you said something else before.
Preparing a witness to tell the truth in a way that is effective, a way that it will be embraced and believed by a jury, it’s not hard at all. It just takes time. And it takes you sitting down with them and exploring with them what’s really going on. And sometimes, they don’t talk a lot about, let’s say, how they feel. And if you were to ask them a question, if you don’t have the spouse there or a roommate or somebody there, say, “What would your roommate say about the way you were behaving after the car wreck, or the way you were responding to the bad news?”
Or whatever the case may be. What would your roommate say? What would your spouse say? How would your spouse describe your demeanor? Well, she kept saying I was cranky and I needed to get up and do more, and I needed to quit being so depressed.
Find out what the truth is when you can get the witness or the client to articulate how they feel through the eyes of some disinterested person, and then they’ll get an idea of how ineffective they are in expressing what they were going through. The best clients, with the best cases, aren’t good at conveying the truth about their damages in particular, in a way that’s effective, in a way that’s going to be embraced and believed by a jury.
You’re going to have to help them get through that, but don’t tell them what to say. Don’t put it in your words, because I promise you that your words will not resonate with them when they utter them, they will not appear believable.
They will not be embraced by the jury as the truth. And they, ultimately, won’t be believed. If you think there’s no difference between coaching the witness and preparing a witness, I think you’ll find out quickly when that witness or client gets cross-examined in front of a jury, that you’re wrong.
So make sure that you understand the distinction. Make it a clear distinction in your mind, and don’t venture into witness coaching. It is not effective. If you think it’s cute, it’s not cute. Anything that’s cute in court, ultimately, is not cute. Any games you play in court, you’re going to lose them every time. So I would encourage you, get to know your clients. Get to know your witnesses.
Discover how well they articulate the truth in a meaningful way that’s going to be embraced and believed by a jury or a fact finder. And if they struggle, help them. Help them get through whatever is blocking them from articulating it better. Sometimes it’s intelligence. Sometimes it’s vocabulary. Sometimes people, a lot of good people, matter of fact, most of the good people that have a hard time expressing how they feel.
You going to have to help them get through that so that you can prevail upon a jury what the truth is. Thank you. I hope this has been a little bit helpful. Thank you for your time. I look forward to talk to you again.