Witness Preparation Mistakes to Avoid

What scares you most? If you fall into the majority, then things like spiders and heights are actually an easier sell than public speaking.¹

While witnesses in legal matters don’t stand up and deliver a formal speech, their ability to speak clearly, think under pressure, and appear honest and confident in a courtroom is critical to providing useful testimony. 

Fortunately, smart preparation practices can help your witnesses overcome nerves by familiarizing them with the process and environment while offering tools to boost their execution of their role at trial or deposition. 

Common Witness Preparation Mistakes to Avoid

Getting your witness prep right starts with understanding what can derail your case. To that end, avoid these common mistakes:.

Over-Coaching or Rehearsing Responses Too Rigidly

Preparation is necessary, but going overboard can lead to witnesses who appear to have been coached or provided with an exact script. Use practice questioning and mock trial events to help witnesses offer assertive testimony, but don’t suggest specific phrasing or tailor their words. 

Failing to Set Expectations About the Litigation Process

What you take for granted at the courthouse is entirely foreign to most witnesses. Make sure they understand how the proceedings work, including basics like: 

• Formal procedures and rules in the courtroom
• Their rights and responsibilities, including truthfulness, impeachment, and contempt
• Possible wait times and rescheduling

Neglecting to Prepare for Cross-Examination

Testifying isn’t just about answering your questions. Make sure witnesses are ready to stand up under cross-examination, too. To prepare for cross-examination effectively, you can: 

• Have multiple individuals question them
• Identify questions the opposition will likely ask, plus ones you’d object to
• Provide exposure to being treated as a hostile witness
• Discuss when and how to answer succinctly without elaborating
• Conduct a mock trial

Ignoring Nonverbal Communication and Demeanor

Body language research has found that communication breaks down to 55% nonverbal, 38% vocal, and 7% the words themselves (free of inflection or expression).² This makes it critical that witnesses understand and control their nonverbal cues.

Consider having them: 

• Review recordings of their deposition testimony or mock examinations
• Watch instructional videos on leveraging nonverbal communication
• Focus on the basics of posture, eye contact, and facial expressions

Not Reviewing Key Case Documents with the Witness

A surprise can occasionally be a good thing in court, but not when it comes from a lack of communication with your own witness. If their testimony will overlap with or include specific documents or exhibits, ensure they’re familiar with anything they could be questioned about. 

Skipping Mock Q&A or Practice Sessions

It doesn’t matter how well a witness recalls facts if they’re unprepared for the examination process. Don’t replace practice with a list of tips or homework. Instead, schedule mock examinations, depositions, or trials that can be recorded and reviewed.

Waiting Until the Last Minute

A last-minute rush is the last thing your witness needs. Witness preparation should support removing undue stress or strain on witnesses rather than adding to it. Work far enough ahead to allow your witnesses to: 

• Easily schedule time with you and around trial dates
• Buy court clothing
• Return to you with any questions that arise

Providing Incomplete or Overwhelming Case Info

It’s important to find the right balance of information to provide to your witness. You don’t want to overwhelm them, but provide just enough case information to help them succeed on the stand.

They don’t need to be exposed to aspects of a case that have nothing to do with their testimony. At the same time, consider what facts may make a difference in their willingness or attention to detail without compromising integrity.

Not Tailoring Prep to the Witness’s Experience Level

Having a standardized approach to witness preparation is useful, but the process isn’t one-size-fits-all. Learn about each individual’s experience and knowledge before tailoring prep to include the right “modules,” such as: 

• Legal procedural basics and courtroom protocol
• Communication and speaking skills
• Practice that incorporates exhibits, evidence, or documents
• Recommended clothing and accessories
• What can and cannot be brought with them to court

How Trial Support Can Strengthen Witness Preparation

Attorneys don’t have to go it alone when it comes to getting witness prep right. Leveraging expert partners provides: 

• Access to consultants and expert prep services
• Use of video tools and presentation software for feedback
• Mock depositions, examinations, and mock trials
• A wide pool of experience across practice areas

Final Thoughts: Preparing Witnesses the Right Way

Witness preparation isn’t like coaching a performance—instead, it’s a process of clearing away clutter that can distract your jury from focusing on the facts at hand. Taking a thoughtful approach and avoiding common pitfalls leads to the confident, credible, and clear testimony necessary to achieve desired outcomes.

TrialQuest, the trial services division of U.S. Legal Support, can help. Our consultants offer the combined experience of more than 53,000 high-risk trials, arbitrations, and mediations across nearly all practice areas and jurisdictions.

To discuss your witness preparation, mock trial, and other trial support needs, contact us today.

Sources: 

1. National Social Anxiety Center. Public Speaking Anxiety And Fear Of Brain Freezes. https://nationalsocialanxietycenter.com/2017/02/20/public-speaking-and-fear-of-brain-freezes/
2. The University of Texas Permian Basin. How Much of Communication Is Nonverbal? https://online.utpb.edu/about-us/articles/communication/how-much-of-communication-is-nonverbal/

Julie Feller

Julie Feller is the Vice President of Marketing at U.S. Legal Support where she leads innovative marketing initiatives. With a proven track record in the legal industry, Juie previously served at Abacus Data Systems (now Caret Legal) where she played a pivotal role in providing cutting-edge technology platforms and services to legal professionals nationwide.