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reparing witnesses 1: testimony to be in most persuasive

form
Posted By: je froilan m. clerigo
27-May-2008

Witnesses must be prepared for direct examination. "Preparing witnesses"


does not mean coaching him on his testimony. On the contrary, the witness
should always be instructed to tell the truth; preparing means doing our
duty as lawyers to present the witness testimony in the best and most
persuasive light possible.
We suggest that, even before the initial conference with the witness, the
lawyer should've already asked him to write down everything that he knows
about the case. In other words, he should write down his story. Sure, the
lawyer himself can do this by taking notes during the interview, but there
are numerous benefits in asking the witness to do this himself:
First, the witness knows the facts that he will testify to more than the
lawyer does or ever will. Asking the witness to write it down minimizes
leaving out important facts or events. Of course, before the witness starts to
write, the lawyer should have already focused the witness only on those
events that he expects to question the witness during his testimony;
otherwise the witness' written out story will be formless and fuzzy that it will
not serve its purpose.
Second, the witness becomes better prepared and more confident. After
writing down his story, he knows that he has full grasp of the facts, and that
knowledge will ease the apprehension when he takes the stand.
Third, the witness recollection of the events will be better. We've all had
this experience: unlike verbally narrating an event - when we sometimes
blurt out words without meaning them - writing makes us think harder of
the event. Chances are that the witness wrote and re-wrote his "essay"
before he gives it to the lawyer, checking and re-checking his recollection of
the events before he commits them on paper. By doing so, he jogs his
memory more.
And fourth, it becomes easy for the lawyer to prepare his outline of the
witness' testimony.
That same confidence of the witness will ultimately infect his lawyer,
whose own confidence will come from knowing that his witness is well-

prepared.

Preparing the witness 2: discussing the testimony with the


witness
Posted By: je froilan m. clerigo
28-May-2008

When discussing the outline of the witness' testimony, the lawyer does not
give the witness a copy, however. He recognizes the danger that, during
cross-exam, the witness may be required to produce the outline if he
unwittingly mentions it. If he does produce the outline, it will give the
impression that he was coached.
The lawyer merely discusses with the witness the facts he wishes to
extract from the testimony. For instance, if the witness is an eye-witness,
the lawyer may tell him, "What I will be asking you questions about will
focus mainly on what you saw happened at the time of the event, and my
questions may require some detailed answers. I may also ask you why you
were there at the time, where you were located while the events were
happening, and other questions which will provide the context of your
testimony."
Then - and this is key - he give the witness the topical points of the
testimony, explaining to him its general order, where the probable
beginning, middle and end will be, but always assuring him not to worry
about the particular order as it is not written in stone and may, therefore,
change. The witness must know the topics and the facts that will be taken
up within these topics.
Because of this discussion, he will instinctively recognize these topics as
his direct examination goes along.
It is also important that beforehand, the lawyer must have already
discussed with the witness the role that his testimony will play in the case.
For instance, the lawyer may say "You are an eyewitness to the robbery.
Your testimony is therefore very important because it is you who can identify
who the robbers were. You were there while the robbery was going on, so
you can describe to the judge what the robbers did during and after the
robbery, what was taken from you, and your mental state while the robbery

was going on." This will make the witness aware of the significance of the
topics that the lawyer will ask him during the examination.
The lawyer does not rehearse the witness by going through a written Q &
A with him. This will just make the witness nervous: he knows that when he
takes the stand, only his lawyer will have a copy of the "script" while he will
only have his memory to rely on. He may think he may screw up, forget
something, or answer a question incorrectly.
But, perhaps just to give him a feel of how the questions will be phrased,
the lawyer can ask him a couple of sample questions to answer during the
discussion. But, he has to be reminded that the words of the questions are
not important: the lawyer may ask it in a different way, especially when
there is an objection from the other lawyer. What is important is he
understands the question and he should answer as he understood it, taking
into account the topics that the lawyer discussed with him earlier.

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