Preparing Witnesses to Testify: Three Rules of 3
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1 Preparing Witnesses to Testify: Three Rules of 3 THIRTEEN BUILDING BLOCKS FOR BECOMING A GREAT TRIAL LAWYER David C. Kent SEDGWICK LLP DALLAS Dallas Bar Association Trial Skills Section
2 Even though witness preparation occurs in practically every lawsuit, it is almost never taught in law school, not directly regulated, seldom discussed in scholarly literature, and rarely litigated. Witness preparation is treated as one of the dark secrets of the legal profession. -- Prof. John Applegate
3 The Lawyer s Duty [The lawyer s] duty is to extract the facts from the witness, not to pour them into him; to learn what the witness does know, not to teach him what he ought to know. -- In re Eldridge, 37 N.Y. 161, 171 (N.Y. 1880)
4 3 Rules for You Rule #1: Know Your Limits
5 Improper Actions The Big Four 1. Destruction, alteration or secretion of evidence 2. Obstructing access to witnesses 3. Paying for testimony (bribery) 4. Offering false testimony
6 Improper Actions #4: False Testimony May not knowingly offer false testimony Knowingly = actual knowledge of falsity, but knowledge can be inferred If in doubt, offer the testimony Rely on cross-examination and the adversary system to straighten it out
7 Permissible Conduct RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS 116: Interviewing and Preparing a Prospective Witness
8 Permissible Conduct 1. Invite the witness to provide truthful testimony favorable to the lawyer s client; 2. Discuss the witness s recollection and probable testimony; 3. Review the factual context into which the witness s observations or opinions will fit; 4. Review documents or other physical evidence that may be introduced;
9 Permissible Conduct (Continued) 5. Reveal to the witness other testimony or evidence that will be presented and ask the witness to reconsider the witness s recollection or recounting of events in that light; 6. Discuss the applicability of law to the events in issue; 7. Discuss probable lines of hostile cross-examination that the witness should be prepared to meet;
10 Permissible Conduct (Continued) 8. Discuss the role of the witness and effective courtroom demeanor; 9. Suggest choice of words that might be employed to make the witness s meaning clear; and 10. Rehearse testimony.
11 3 Rules for You Rule #2: Know Your Privileges
12 Know Your Privileges 1. Third Party Witness or Client? Third Party Witness = Not Privileged Client = Privileged 2. Fact or Expert Witness? Fact = Not Privileged Expert = Somewhat privileged State Court = generally not privileged Federal Court = somewhat privileged 3. Work Product Privileges
13 3 Rules for You Rule #3: Know Your Witness
14 The CEO / Professional
15 Fair-Weather Friends & Faint-Hearted Heroes
16 Sergeant Shultz ( I Know Nothing )
17 Problem Witnesses: The Mid-Level Manager The I told you so manager The fired & disgruntled manager The Peter Principle manager
18 3 Rules for Your Witness
19 3 Rules for Your Witness Checklists and The Witness Tutorial
20 3 Rules for Your Witness
21 3 Rules for Your Witness Tell the Truth The Whole Truth Nothing But the Truth
22 3 Rules for Your Witness Rule #1: Tell the Truth
23 #1: Tell the Truth It s not just good advice. It s the law.
24 #1: Tell the Truth Tell the Truth = Report the facts
25 #1: Tell the Truth Report the facts. Accurately.
26 #1: Tell the Truth Report the facts. Accurately. Precisely.
27 #1: Tell the Truth Report the facts. Accurately. Precisely. Simply.
28 3 Rules for Your Witness Rule #2: The Whole Truth
29 #2: The Whole Truth Provide context and meaning to the facts reported
30 #2: The Whole Truth A full and complete answer to the question asked Half-truths and misleading answers don t count
31 3 Rules for Your Witness Rule #3: Nothing but the Truth
32 #3: Nothing But the Truth Defend your context and meaning Don t let the questioner define it for you
33 #3: Nothing But the Truth Answer only the question asked Do not volunteer Short answers are better than long ones Yes, No and I don t know are acceptable, if they are correct Learn and return to your talking points and safe harbor answers
34 #2: The Whole Truth vs. #3: Nothing But the Truth Confusing to witnesses Potential source of trouble Were you alone with Monica Lewinsky? It depends on what the meaning of is is.
35 3 Rules for Your Audience
36 3 Rules for Your Audience Rule #1: Do as Your Mother Says...
37 3 Rules for Your Audience Rule #1: Do as Your Mother Says... SIT UP STRAIGHT!
38 Sit Up Straight: The Newscaster Position Sit on the front edge of the chair Lean forward 20º
39 Sit Up Straight Don t get tired or lazy!
40 Sit Up Straight Don t get tired or lazy!
41 Sit Up Straight Don t get tired or lazy!
42 Sit Up Straight Don t get tired or lazy!
43 Sit Up Straight Don t get tired or lazy!
44 Sit Up Straight Don t get tired or lazy!
45 Sit Up Straight Don t get tired or lazy!
46 Sit Up Straight Don t get tired or lazy!
47 Be Classy, Dallas
48 Sit Up Straight Avoid Busy or Distracting Clothes, Jewelry or HAIR Phil Spector
49 Sit Up Straight Avoid Busy or Distracting Clothes, Jewelry or HAIR Phil Spector
50 Sit Up Straight Avoid Busy or Distracting Clothes, Jewelry or HAIR Phil Spector
51 3 Rules for Your Audience Rule #2: Do as Your Mother Says...
52 3 Rules for Your Audience Rule #2: Do as Your Mother Says... STOP FIDGETING!
53 Stop Fidgeting Beware of Body Language The Camera Never Blinks
54 Stop Fidgeting Hands flat on the table Dominant hand on top
55 Stop Fidgeting Hands flat on the table
56 Stop Fidgeting Hands flat on the table = control crazy hand urges
57 Stop Fidgeting Hands flat on the table = control crazy hand urges
58 Stop Fidgeting Hands flat on the table = control crazy hand urges
59 Stop Fidgeting Hands flat on the table = control crazy hand urges
60 Stop Fidgeting Body Language Arms Crossed
61 Stop Fidgeting Body Language Arms Crossed
62 Stop Fidgeting Body Language Arms Crossed
63 Stop Fidgeting Body Language Arms Crossed
64 Stop Fidgeting Facial Expressions -- Anger
65 Stop Fidgeting Facial Expressions -- Anger
66 Stop Fidgeting Facial Expressions -- Anger
67 Stop Fidgeting Facial Expressions -- Anger
68 Stop Fidgeting Facial Expressions -- Anger
69 Stop Fidgeting Facial Expressions -- Pursed Lips
70 Stop Fidgeting Facial Expressions -- Pursed Lips
71 Stop Fidgeting Facial Expressions -- Pursed Lips
72 Stop Fidgeting Facial Expressions -- Pursed Lips
73 Stop Fidgeting Facial Expressions -- Pursed Lips Oops!
74 Stop Fidgeting Facial Mannerisms Rolled Eyes
75 Stop Fidgeting Facial Mannerisms Rolled Eyes
76 Stop Fidgeting Facial Mannerisms Rolled Eyes
77 Stop Fidgeting Facial Mannerisms Smiles or Smirks?
78 Stop Fidgeting Facial Mannerisms Smiles or Smirks?
79 Stop Fidgeting Facial Mannerisms Smiles or Smirks?
80 Stop Fidgeting Body Movements Shrugged Shoulders
81 Stop Fidgeting Body Movements Shrugged Shoulders
82 Stop Fidgeting Nervous Mannerisms Touching Face
83 Stop Fidgeting Nervous Mannerisms Touching Hair
84 Stop Fidgeting Nervous Mannerisms Tugging Ears
85 Stop Fidgeting Nervous Mannerisms Touching Temples
86 Stop Fidgeting Nervous Mannerisms Touching Lips
87 Stop Fidgeting Nervous Mannerisms Touching Lips
88 Stop Fidgeting Nervous Mannerisms Touching Lips
89 Stop Fidgeting Nervous Mannerisms Touching Nose
90 Stop Fidgeting Nervous Mannerisms Touching Nose
91 Stop Fidgeting Nervous Mannerisms Touching Nose
92 Stop Fidgeting Nervous Mannerisms Steepling Hands
93 Stop Fidgeting Nervous Mannerisms Playing with Rings
94 Stop Fidgeting Nervous Mannerisms Playing with Rings
95 Stop Fidgeting Nervous Mannerisms Playing with Rings
96 Stop Fidgeting Nervous Mannerisms Playing with Rings
97 Stop Fidgeting Body Language The Exaggerated Sigh
98 Stop Fidgeting Body Language Being Caught Unaware
99 Stop Fidgeting Body Language Being Caught Unaware
100 Stop Fidgeting Body Language Cool, Calm and Cheney
101 Stop Fidgeting Body Language Calm, Cool and Cheney
102 3 Rules for Your Audience Rule #3: How do I get to Carnegie Hall?
103 3 Rules for Your Audience Rule #3: How do I get to Carnegie Hall? PRACTICE!
104 How Do I Get to Carnegie Hall? Practice before the camera
105 Recommendations for Witness Prep What would your mother say? Steer clear of trouble The Star Trek mantra
106 In the End, the Court Wins An attorney owes his first duty to the court. He assumed his obligation toward it before he ever had a client. His oath requires him to be absolutely honest even though his client s interests may seem to require a contrary course. The [lawyer] cannot serve two masters, and the one [he] has undertaken to serve primarily is the court. In re Integration of Nebraska State Bar Ass n, 275 N.W. 265, 268 (Neb. 1937)
107 Preparing Witnesses to Testify: Three Rules of 3 THIRTEEN BUILDING BLOCKS FOR BECOMING A GREAT TRIAL LAWYER David C. Kent SEDGWICK LLP DALLAS Dallas Bar Association Trial Skills Section
Law Offices of. 2249 Derby Road (at Sunrise Highway) Baldwin, New York 11510 Telephone (516) 223-5500 Fax (516) 223-5505 www.nelsonlaw.
ROBERT N. NELSON KIMBERLY I. NELSON ADMITTED IN NY, NJ SHANA L. CURTI MATTHEW R. DROST Law Offices of ROBERT N. NELSON 2249 Derby Road (at Sunrise Highway) Baldwin, New York 11510 Telephone (516) 223-5500
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