Comment on this article:


(Optional. We will not publish your email address here or elsewhere.)


Maximum 5,000 characters. Character count: 0

When you submit this message, you give The Jury Expert permission to publish it on the web. As this is a professional journal, editors will publish comments that are courteous and respectful (even when in disagreement). Thanks for participating in the TJE community!

Recent Comments:

Rita Handrich comments on Jurors' Perceptions of Attorneys See the comment

Erica Anderson comments on Jurors' Perceptions of Attorneys See the comment

Marjorie Fargo comments on SJQs for White Collar Defense See the comment

Michael Brockwell comments on Packing Like a Pro See the comment

Chris O'Brien comments on Effective Voir Dire See the comment

Darla Russell comments on Jurors' Perceptions of Attorneys See the comment

Paul Luvera blogs on Effective Voir Dire See the blog post

Mitchell Thomas comments on Jurors' Perceptions of Attorneys See the comment

Brian Patterson comments on Trial Graphics on the Cheap See the comment

Jason Barnes comments on Bifurcation/Hindsight See the comment

Jason Barnes comments on Trial Graphics on the Cheap See the comment

Jason Barnes comments on Packing Like a Pro See the comment

Joshua Franklin comments on Effective Voir Dire See the comment

Annie Gough comments on Trial Graphics on the Cheap See the comment 

Matt Groebe responds to Charli Morris on Bifurcation/Hindsight See the comment

D. Montiel comments on Trial Graphics on the Cheap See the comment

Francesca Cerrato comments on Trial Graphics on the Cheap See the comment

Charli Morris comments on Bifurcation/Hindsight See the comment

Ted Brooks comments on Can the iPod Pick Your Next Jury See the comment

Sean comments on Can the iPad Pick Your Next Jury? See the comment

Frank Pray comments on How to Present Yourself in Court See the comment

Kathy Kellermann comments on Political Attack Ads (What Can We Learn?) See the comment

Joe Guastaferro comments on Do We Need Einsteins in the Jury Box? See the comment

Karen Franklin has blogged on the Psychology of Voir Dire at her blog In the News. See the blog post

Kathy Kellermann comments on Police Deception During Interrogation See the comment

Kathy Kellermann comments on Political Attack Ads (What Can We Learn?)  See the comment

Charli Morris comments on Political Attack Ads (What Can We Learn?) See the comment

Laura Dominic responds to Kathy Kellerman's comment on Gender in the Courtroom See Laura's response

Kathy Kellermann comments on Persuading with Probability See the comment

Kathy Kellermann comments on Gender in the Courtroom See the comment

Paul B. Kennedy has blogged on Gender in the Courtroom at his blog: The Defense Rests See the post

Edward Schwartz has commented on Could the iPad Pick Your Next Jury See the comment

Kathy Kellerman has commented on When Jurors Nod See the comment

Doug Keene has blogged on Working for Justice in Neshoba County at his blog: The Jury Room See the post

Phil Monte comments on SJQs for The Holy War See the comment

Dan Hull comments on Managing & Mentoring Millennials See the comment

Sean Overland comments on Out of the Shadows, Into the Jury Box See the comment

Blawg Review #283 cites Managing & Mentoring Millennials See Blawg Review #283

mikee  comments on Will It Hurt Me in Court? See the comment

Rita Handrich has blogged on Managing & Mentoring Millennials at her firm blog: The Jury Room See the post

Paul Scoptur has pointed readers of his blog (Scoptur's Law) to the new issue of The Jury Expert See the blog post

Thaddeus Hoffmeister has pointed readers of his blog (Juries) to the new issue of The Jury Expert See the blog post

Michael Drake at Strange Doctrines blog has pointed his readers to Grime and Punishment See the blog post

Roland Stark has commented on Persuading with Probability See the comment

Keith Lee has blogged on Tattoos, Tolerance, Technology and TMI at his blog: An Associate's Mind See the post

Jason Barnes has posted a link on a recent Batson ruling from the 9th Circuit See the link

The University of Texas at Austin Law School Advocacy Program recommends The Jury Expert to their law students See the Law School press release 

Karen Franklin has blogged on What We Do (& Do Not) Know About Jurors & Race See the post

Doug Keene has blogged on Emotions in the Courtroom at The Jury Room blog See the blog post

James Goulding has blogged on Tattoos, Tolerance, Technology & TMI at Mean is Out blog See the post

Doug Keene has blogged on Tattoos, Tolerance, Technology & TMI at The Jury Room blog See the blog post

Daniel Denis responds to Jason Barnes comment on Persuading with Probability See the response

Walter K. [@noblindfold] has blogged on Tattoos, Tolerance, Technology & TMI See the blog post

Jason Barnes has commented on Persuading with Probability See the comment

David Badertscher has blogged on Hate Crimes and Racial Slurs at Criminal Law Library Blog See the blog post

Stephanie West Allen has blogged on A Courtroom Full of Reptiles See the blog post

Stephanie West Allen has blogged on A Courtroom Full of Reptiles at idealawg blog See the blog post

Jaime and Kevin comment on East Texas Patent Trials See the comment

David Fish comments on A Courtroom Full of Reptiles See the comment

Stephanie West Allen has blogged on A Courtroom Full of Reptiles at idealawg blog See the blog post

Tony Duncan has pointed readers of his blog to Jurors and the Internet See the blog post

Daylight Atheism blog has posted on America Hates Atheists See the blog post

Stephanie West Allen has blogged on A Courtroom Full of Reptiles at idealawg blog See the blog post

Mark Bennett has blogged on A Courtroom Full of Reptiles at Defending People blog See the blog post

'Joe Attorney' has blogged on A Courtroom Full of Reptiles at Doing Justice blog See the blog post

Joe Markowitz has commented on A Courtroom Full of Reptiles See the comment

Rita Handrich has pointed readers of The Jury Room blog to this issue of TJE See the blog post

John Mittelman has commented on A Courtroom Full of Reptiles See the comment

Victoria Ward has blogged on A Courtroom Full of Reptiles See the blog post

Stephanie West Allen has blogged on A Courtroom Full of Reptiles See the blog post

Jason Barnes comments on A Courtroom Full of Reptiles See the comment

Brian Patterson comments on Biggest Bully in the Room See the comment

Todd Schlossberg comments on A Courtroom Full of Reptiles See the comment

SCOTUS blog references Beneath the Robes & Behind Closed Doors See the blog post

Marjorie Fargo has commented on A Courtroom Full of Reptiles See the comment

Paul Scoptur has pointed readers of his blog, Scoptur's Law to A Courtroom Full of Reptiles See the post

Elie Mystal has referenced Beneath The Robes & Behind Closed Doors in Non Sequiturs at Above the Law Blog See the post

Montgomery Delaney has commented on A Courtroom Full of Reptiles See the comment

Ken Broda-Bahm has commented on A Courtroom Full of Reptiles See the comment

Mark Bennett has commented on A Courtroom Full of Reptiles See the comment

Jessica Hoffman has commented on A Courtroom Full of Reptiles is a Bad Idea See the comment

Thaddeus Hoffmeister has blogged on Avoiding Problems During Jury Selection in the Age of Batson at Juries Blog See the post

Ken Broda-Bahm comments on A Courtroom Full of Reptiles is a Bad Idea See the comment

Steve Schlicht comments on America Hates Atheists See the comment

Stephen G. Schwarz has cited Jurors and Technology in Trial in a post at the Faraci Lange blog See the post

David Shackelford has cited America Hates Atheists at the Shark Attack blog See the blog

Groklaw cites Practical Tools for Staying Organized in Jury Selection & Voir Dire See the post

Doug Keene has blogged on Rules Don't Apply to Me at The Jury Room blog See the post

Steven G. Pietrick has commented on From the Conference Room to the Courtroom See the comment

John Buntin has blogged on Rules Don't Apply to Me at 13th Floor blog See the post

Razib Khan has blogged on America Hates Atheists at Gene Expression blog See the post

Steven Gursten has blogged on Injured Body, Injured Mind See the blog post

Gribble the Munchkin comments on America Hates Atheists See the comment

Stuart Bechman comments on America Hates Atheists See the comment

science + religion TODAY has blogged on America Hates Atheists See the post

Hemant Mehta has blogged on America Hates Atheists at Friendly Atheist See the post

Stephanie West Allen blogs on Toying with Juror's Emotions at idealawg See the post

Marc Gray comments on America Hates Atheists See the comment

Stephanie West Allen blogs on The Rules Don't Apply to Me at idealawg See the post

Robin Hanson has cited America Hates Atheists in his blog Overcoming Bias See the post

LawyersUSAOnline has cited The Rules Don't Apply to Me See the link

Brian Patterson comments on Using Technology in Litigation See the comment

Ted Brooks comments on Using Technology in Litigation at his firm blog Court & Trial Technology See the post

'Anonymous Atheist' has commented on America Hates Atheists See the comment

Elaine Lewis comments on Goals of Witness Preparation See the comment

Charli Morris comments on "The Prep Question" See the comment

David Shafer comments on "The Prep Question" See the comment

Lee Keller King has commented on Will It Hurt Me in Court See the comment

Doug Keene has blogged at The Jury Room on Sixteen Simple Rules See the blog post

Steve Pietrick has blogged on Damages: The Defense Attorney's Dilemma See the blog post

Melissa Gomez has blogged on Damages: The Defense Attorney's Dilemma See the blog post

Adam Benforado has commented on Law on Display via Situationist Blog See the comment

John Day has blogged at Day on Torts about Jurors & the Internet See the blog post

Rita Handrich has blogged at The Jury Room on Colorism See the blog post

Philip Cave has blogged at Court-Martial Trial Practice on 16 Simple Rules for Better Jury Selection See the blog

Dennis Elias has blogged on Damages: The Defense Attorney's Dilemma See the blog post

Paul Scoptur has pointed his blog readers to this issue of The Jury Expert See Paul's blog

Edward Schwartz has blogged on Damages: The Defense Attorney's Dilemma See the blog post

K_Yew has pointed his blog readers to 16 Simple Rules for Better Jury Selection See the blog

Sean Overland has blogged on Damages: The Defense Attorney's Dilemma See the blog post

Feminist Law Profs blog wants to know where the women are. We know where

Lawyers USA has written a piece featuring Katherine James and her article on Live Communication See the article

Steven G. Pietrick has commented on Preparing for the Prep Question See the comment

David Oliver at Mass Torts: State of the Art Blog has cited 16 Simple Rules for Better Jury Selection See the blog

Scott Henson of Grits for Breakfast has cited 16 Simple Rules for Better Jury Selection See the blog

Julie Campanini has blogged on Out & Proud See the blog post

Grey Tesh sends readers of Palm Beach Criminal Lawyer Blog to see 16 Simple Rules for Better Jury Selection See the blog post

Tyler Cowen sends his readers from Marginal Revolution blog to see 16 Simple Rules for Better Jury Selection See Tyler's blog

Forensic Focus Forums has begun a discussion on Law on Display See the forum posts

Book Forum has cited Don't Poke Scalia on their Omnivore page See the post

Book Forum has cited Jurors & the Internet on their Omnivore page See the post

Christina Spiesel comments on Ted Brooks' blog post regarding Law on Display See the comment

Susan Levy comments on Damages: Defense Attorney's Dilemma See the comment

Edward P. Schwartz comments on Law on Display See the comment

Karen Franklin has blogged on this issue of The Jury Expert See the blog

Sean Overland has blogged on Jurors and the Internet See the blog post

Publius comments on Enron to Broadcom See the comment

Judge John DiMotto references Jurors and the Internet on his blog See the blog

Ted Brooks has blogged on Law on Display See the blog post

Kevin Boully has blogged on 16 Simple Rules for Better Jury Selection See the blog

Louisville Courier-Journal has published on article (Taser-death verdict challenged over juror's conduct) which references our Jurors & the Internet article See the Louisville Courier-Journal

Florida Bar Journal has published an article (Reining in Juror Misconduct) citing our Jurors & the Internet article See the Florida Bar Journal article

Howard Wasserman has blogged on Don't Poke Scalia at his Federal Courts blog See the blog

Ric Dexter has commented on What Preparation Does Your Witness Need See the comment

David Badertscher has blogged on Jurors & the Internet at his Criminal Law Library Blog See the blog

Phil Cave has blogged on Live Communication at his blog Court-Martial Trial Practice See the blog

Melissa M. Gomez has blogged on Jury Research for Settlement on her blog at the Legal Intelligencer See the blog

Doug Keene has blogged on this issue of The Jury Expert at his firm blog: The Jury Room See the blog

Martin G. commented on When Jurors Nod See the comment

E. Oliver commented on When Jurors Nod See the comment

Gregory Cusimano commented on Live Communication See the comment

Matt M. commented on Jurors and the Internet See the comment

W. Stuermer commented on Don't Poke Scalia See the comment

David Schwartz commented on Don't Poke Scalia See the comment

Janet commented on Don't Poke Scalia See the comment

Jason Barnes commented on When Jurors Nod See the comment

Jason Barnes commented on Jurors and the Internet See the comment

Thaddeus Hoffmeister blogged on Jurors and the Internet at his blog Juries See the blog

Adam Chandler blogged on Don't Poke Scalia at SCOTUS blog See the blog

Thaddeus Hoffmeister commented on Jurors and the Internet See the comment

Edward Schwartz has blogged on Jury Research for Settlement at the Jury Box Blog See the blog

Sean Overland has blogged on Jury Research for Settlement on his blog at Overland Consulting See the blog

T. Guthell, MD has commented on Jurors and the Internet See the comment

David Badertscher has listed our Table of Contents at his Criminal Law Library Blog See the blog

Sean Overland has blogged on Identifying Leaders See the blog

Edward Schwartz has blogged on Terror Management Theory in the Courtroom See the blog

Joseph C. Markowitz has blogged on Civil Case Mediation See the blog

Phyllis G. Pollack has blogged on Civil Case Mediation See the blog

Victoria Cooke has commented on Graphic Injury Photographs See the comment

Glenn Meyer has commented on Gender and Assault Weapons See the comment

Paul Silver has commented on Civil Case Mediation See the comment

Wendy Saxon comments on Gender and Assault Weapons See the comment

Arch Stanton comments on Gender and Assault Weapons See the comment

Ted Brooks has blogged on Anthropomorphism in Technical Presentations See the blog post

Karen Franklin has blogged on Hate Crimes & Racial Slurs See the blog post

Matthew McCusker comments on Civil Case Mediation See the comment

benezra1970 comments on Gender and Assault Weapons See the comment

Wendy Saxon comments on Gender and Assault Weapons See the comment

Wendy Saxon comments on Gender and Assault Weapons See the comment

L.L. Stewart commented on Gender and Assault Weapons See the comment

benezra1970 has commented on Gender and Assault Weapons See the comment

Phil Cave has blogged on Identifying Leaders See the blog post

Doug Keene has blogged on Affirmative Defenses in Product Liability Litigation See the blog post

Vickie Pynchon has commented on Civil Case Mediations See the comment

Cheryl Lubin has commented on Civil Case Mediations See the comment

Anne Reed has blogged on The Jury Expert's September issue See the blog post

Paul Scoptur has blogged on Civil Case Mediations See the blog post

Kevin Boully has blogged on Gender & Assault Weapons See the blog post

Edward Schwartz has blogged on Identifying Leaders See the blog post

Ken Broda-Bahm has blogged on Jury Damage Awards in Recession See the blog post

Rita Handrich has commented on Hate Crimes & Racial Slurs Read the comment

Phillip Miller has blogged about Identifying Leaders See the blog post

Charli Morris comments on Impact of Graphic Injury Photographs Read the comment

Diane Levin has done a blog post on Observations in Civil Mediation See the blog post

Cameron Reed has blogged about Narcissism in Gen Y See the blog post

Stephanie West Allen has done a blog post on Observations in Civil Mediation See the blog post

Edward Schwartz comments on Will It Hurt Me in Court Read the comment

Cheryl Lubin comments on From the Conference Room to the Courtroom Read the comment

Jim Brock comments on Lights, Camera, Action! Read the comment

Jason Barnes comments on Lights, Camera Action! Read the comment

Jason Barnes comments on Jury Damage Awards in Times of Recession Read the comment

Sean Overland comments on the Book Review of The Juror Factor Read the comment

Dennis Elias comments on Jury Damage Awards in Times of Recession Read the comment

Gayle Herde comments on Using Your EAR in Voir Dire Read the comment

Bob Schiffmann comments on What Preparation Does Your Witness Need Read the comment

Jason Barnes comments on What Preparation Does Your Witness Need Read the comment

Alison K. Bennett comments on Using Your EAR in Voir Dire Read the comment

Ted Brooks replies to a comment on Jurors and Technology Read the comment

Jason Barnes comments on Jurors and Technology in Trial Read the comment

Kelley Tobin comments on What Preparation Does Your Witness Need Read the comment

Kacy Miller comments on Jurors and Technology in Trial Read the comment

Charli Morris comments on What Preparation Does Your Witness Need Read the comment

Carol Phillips comments on Gen Y & Narcissism Prevalence Read the comment

Diane Wyzga comments on Juror Stress Read the comment

Edward P. Schwartz comments on Turning Expert Witnesses Into Teachers Read the comment

Phillip Miller comments on Turning Timelines Into Plotlines Read the comment

Jason Barnes comments on Turning Timelines Into Plotlines Read the comment

Phillip Miller comments on Turning Timelines into Plotlines Read the comment

Ric Dexter comments on Turning Timelines Into Plotlines Read the comment

Stacy Fergurson comments on Grime & Punishment Read the comment

Jeri Kagel comments on Turning Timelines Into Plotlines Read the comment

Rita Handrich comments on Grime & Punishment Read the comment

Sean Overland responds to Jeri Kagel's comment Read the response

George Kich comments on Keeping Secrets Read the comment

Kacy Miller responds to comments on Keeping Secrets Read the comment

Laura Rochelois comments on Turning Timelines into Plotlines Read the comment

Sonia Chopra comments on Grime & Punishment Read the comment

Bob Kaufman comments on Injured Body, Injured Mind Read the comment

Steve Laird comments on Injured Body, Injured Mind Read the comment

Steve Laird comments on Keeping Secrets Read the comment

Jeri Kagel comments on Anti-Gay Bias in the Courtroom Read the comment

Dave Zehner comments on Keeping Secrets Read the comment

Sean Overland responds to Pat McEvoy's comment on Anti-Gay Bias in the Courtroom Read the comment

Brian Bornstein responds to Steven Gursten's comment on Injured Body, Injured Mind Read the comment

Jason Barnes responds to Ted Brooks' comment on Turning Timelines into Plotlines Read the comment

Ralph Mongeluzo comments on Turning Timelines into Plotlines Read the comment

Ted Brooks comments on Turning Timelines into Plotlines Read the comment

Diane Wyzga responds to Keeping Secrets Read the comment

Jason Barnes responds to Patrick Norha's comment on Turning Timelines into Plotlines Read the comment

Patrick Norha comments on Turning Timelines into Plotlines Read the comment

Douglas L. Keene comments on Keeping Secrets Read the comment

Bruce A. Beal comments on Keeping Secrets Read the comment

Ken Broda-Bahm comments on Keeping Secrets Read the comment

Pat McEvoy comments on Anti-Gay Bias in the Courtroom Read the comment

Steven Gursten comments on Injured Body, Injured Mind Read the comment

Philip Monte comments on Ethical Issues in Racial Profiling Read the comment

Valerie Hans comments on the book review: The American Jury.
Read the comment
Elaine Lewis comments on The Preparation of Narcissistic Witnesses.
Read the comment

 




Comments 1 | Rating 0

 

Goals Of Witness Preparation:

From A Trial Consultant's Point Of View

 

by Katherine James

 

Katherine James (ActLawABKJ@aol.com) with husband and partner Alan Blumenfeld is the founder of ACT of Communication, a litigation consulting firm that specializes in live communication skills for lawyers and witnesses. An active theater artist, she acts, writes and directs. ACT's website is www.actofcommunication.com.

 

We love answering the questions that our readers have about our work. This article is written as an answer to one reader's question.


Reader Question: "When trial consultants work on witness preparation, what are the goals they seek and how do they work to attain those goals?" 


 

Let me begin by saying that this is the most common question that I get from an attorney who has never used a trial consultant to aid in the preparation of a witness. What a wonderful and welcome question for any trial consultant from ASTC to answer - especially one who spends eighty percent of her time helping attorneys prepare witnesses for testifying as I do!

 

In this article, I will discuss four sets of goals that I believe we all have as trial consultants: Attorney Education, Witness Diagnosis, Witness Cure, and Follow Up.

 

In order to best understand how The American Society of Trial Consultants views witness preparation as an organization, I encourage anyone reading this article to put it side by side with our Professsional Code, Practice Area B, Witness Preparation:

 

Before panic sets in, please note that this part of the code is only a few pages long: 30 - 35. I had the honor of serving on the Standards Committee for ASTC when this part of our professional code was written, so I am very familiar with it. ASTC members have agreed to adhere to this code, and so attorneys can count on it as the basis of our witness preparation practices.

 

FIRST SET OF GOALS: ATTORNEY EDUCATION

 

The trial consultant's first goal is to reassure the attorney who asks this question that he or she is not alone. Most attorneys practicing the law today have never worked with a trial consultant. Attorneys often decide to use one of us for the first time because they are in some kind of a crisis situation. No one calls in a trial consultant to help prepare a witness the first time because things are going perfectly well. Most often we are called in because the attorney realizes that she or he has someone who is vital to the case who has to testify and seems to the attorney to be such a bad witness that he or she has the potential of blowing up the case. In a business case this witness is almost always a company owner or employee. In a personal injury case it is most often the plaintiff. In a medical or legal malpractice case it is the defendant doctor or lawyer. In a criminal case it is the defendant.

 

For the purpose of this article, I am going to assume that the witness is the client or an employee of the client if the client is a corporation.

 

The second goal is to educate the attorney on trial consultants' definition of witness preparation in order to allow the attorney to understand that our idea is consistent with theirs. I generally paraphrase or refer the attorney new to using a trial consultant to the definition of witness preparation found on page 30 of the ASTC Professional Code:

 

"...witness preparation refers to the assistance trial consultants provide attorneys ... in their effort to increase witnesses' understanding, comfort and confidence in the process of testifying for deposition or in court, and to improve witnesses' ability to truthfully present testimony in a clear and effective manner."

 

The next goal is to let the attorney know that we will be working together to prepare the witness. I personally don't understand the usefulness of preparing a witness without his or her attorney and from a practical standpoint, it is a matter of privilege. If we are going to be discussing anything substantive - and we always are - the attorney's presence will always be required according to the code.

 

A trial consultant also has to advise the attorney that although widely assumed to be a privileged activity, some have challenged the confidentiality of witness preparation with a trial consultant. I can assure the attorney this is rare, and that in my more than three decades of working with attorneys and their witnesses this has not yet happened to me personally. In addition to clients, I have helped prepare other witnesses (experts, for example) but not without thoroughly making it known that the privilege is not going to extend to these witnesses. Many attorneys have an agreement with the attorneys on the other side not to discuss use of consultants. I encourage new clients to have such a provision with their opponents.

 

An important goal for any trial consultant is to let the attorney know just how much the consultant can or cannot help a given witness. For example, although very experienced with all kinds of human beings who testify there are certain things I can't "fix". I can't necessarily help someone who is seriously brain damaged be a better witness on a Tuesday and be assured that will "stick" on Wednesday.

 

SECOND SET OF GOALS: RESEARCH AND WITNESS DIAGNOSIS

 

The next thing the trial consultant needs to do is find out why the attorney believes that "this witness" needs extra help with witness preparation. What are the weaknesses that the attorney couldn't fix without professional help? We always need to know, "Why was I called in?"

 

We have various ways of doing this. I prefer a phone call or in person meeting. First, I ask the attorney what is wrong. The attorney usually describes a set of symptoms. For example, "She volunteers constantly and I can't get her to stop." Or, "He's completely arrogant and angry and I can't get him to be nice." I carefully listen for the lawyer's attitude toward the witness and often ask how the lawyer feels about the witness. This doesn't necessarily change what needs to be done in terms of fixing the witness, but it will make a difference in the long run. I find that some clients have driven their lawyers so crazy that the lawyers hate them. Sometimes I find that a lawyer and a witness are very different people in the way that they learn, approach life, or think that the world works. I keep these first impressions of the attorney-client human relationship in mind for when we are in the witness preparation session itself.

 

As all trial consultants do, I always ask for some written material to review for the case. If we are preparing the witness for a deposition, I need to at least read the complaint and the response. If we are going to trial, I need to read the motion for summary judgment and the response or something equivalent. If there has been a focus group study, I want to read at minimum a summary of the findings and what the group said about this witness. This material allows the trial consultant a working knowledge of the case.

 

If the witness preparation is for trial testimony, the trial consultant will also want to review the deposition transcript and any recordings made (still often referred to as "videotape" although they will actually be either CD's or computer files) of the witness during deposition. If there is prior trial testimony, it is very helpful for the trial consultant to read that as well. Review of these witness specific materials gives the trial consultant as good a handle as possible on a witness' strengths and weaknesses before meeting him or her. It also allows the trial consultant even more of a working knowledge of the content of what this witness might be responsible for in direct and in cross-examination. From review of the written material a trial consultant can learn everything from whether or not this witness uses clear, active, regular English to the witness's demeanor to the kind of impression this witness' physical appearance makes.

 

This material also "fills out" the information that the attorney has already talked about - the attorney perceptions of the witness. It helps the consultant "diagnose" the witness's "disease" the witness "presents" through all the "symptoms". I can't stress enough the need for this independent point of view. A trial consultant who prepares witnesses has often seen the issue or the problem again and again and knows the root causes and cures. For example, talking too much is a symptom for any number of problems from the witness wanting to take over control of the case to the witness having self esteem problems (just to name two). Most attorneys know the "what", but most trial consultants have the answer to the "why". It is in the answer to the "why" that the best results are achieved for making this witness the best possible witness he or she can be on the day of testimony.

 

THIRD SET OF GOALS: IN THE PREPARATION SESSION

 

The general goals in a witness preparation session are outlined in the ASTC professional code on page 33:

 

B. Methods used with the witness to meet the agreed upon goals for a witness preparation session can include, but are not limited to:

 

1. Assess and address verbal and nonverbal communication strengths and limitations.

 

2. Identify witness concerns about testimony and goals for preparation.

 

3. Work to increase witness comfort and confidence in testimony.

 

4. Work to strengthen and help develop witness communication skills.

 

5. Whenever helpful, educate the witness on significant aspects of the process and procedures for testimony in deposition or in other forums.

 

6. Clarify the consultant's role in the preparation process and address the possible limits of the confidentiality of the work.

 

7. Address any issues with the physical appearance of the witness.

 

8. Discuss assessment with witness.

 

9. Discomfort or anxiety may be addressed by behavioral techniques, including, but not limited to: breathing exercises; relaxation or visualization techniques; reframing anxious reactions, fears or misperceptions; actual or facsimile courtroom visits; reviewing video recorded mock testimony.

 

10. Work to improve witness' listening skills.

 

11. Whenever possible, conduct and review a sufficient number of mock examinations to encourage the greatest improvement.

I believe that the attorney who asked the question on which this article is based wanted a specific methodology for the second part of the question "how do consultants work to attain those goals?"

 

Since there are so many different kinds of trial consultants and we come from so many different disciplines, I can't speak for all of us when it comes to specific methodology. As the professional code states on page 30:

 

"Trial consultants recognize witness preparation involves the art and science of interpersonal communication, and therefore our professional approaches will take many different forms. ASTC recognizes the diversity of practice by its members within this area."

 

I come from the discipline of the theater, so my methodology is strongly based in learning everything - form and content - "by doing." Other trial consultants come from various branches of psychology, from sociology, from education, and other backgrounds. Some even were or are attorneys in addition to being trial consultants. I will say, however, that almost all of us will have some component of mock examination and critique of that mock examination. Many attorneys are used to preparing witnesses "as they go along" in a lecture combined with a few questions sprinkled in along the way. Most trial consultants would rather have actual mock examination, which we often record with a video camera and then play back and discuss.

 

What this means practically for the attorney who is new to using a trial consultant for witness preparation is that the attorney needs to be prepared before the session with mock questions. If this is a deposition preparation, the attorney should have questions prepared for all the areas that she or he believes will be covered in the deposition. If this is trial preparation, the attorney needs to have both direct and cross-examinations prepared for these mock sessions.

 

Many trial consultants, myself included, pride ourselves on helping attorneys structure direct examinations as a whole and find "better" direct examination questions. One of the great benefits that an attorney new to using a trial consultant for witness preparation can achieve is learning new and better ways of telling the witness's story. Also, attorneys find that they can ask a trial consultant for a critique of the attorney's style, demeanor, presentation, etc. in these mock sessions. A word of caution - this is best done out of the earshot of the witness, who has enough on his or her plate without being involved in improving attorney performance.

 

Speaking of what is in this work for attorneys, one of the major goals of most trial consultants is to improve the relationship between the witness and the attorney. The trial consultant is not, for example, putting the witness on the stand in direct examination. Also, as I mentioned earlier, by the time one of us is called in on a case there might very well already be some kind of a rift between the witness and the attorney. I find that making a weak relationship stronger and a strong relationship great is often a being a by-product of my witness preparation sessions.

 

The number and length of witness preparation session is takes to ensure the witness is sufficiently "prepared" will vary from situation to situation and consultant to consultant. In my experience, it is rare that anyone is "fixed" in less than a half day. In my practice, I always encourage attorneys to allow a minimum of one day per witness per event when budgeting time for witness preparation. For example, you have two clients who are having their depositions taken. Allow a day for each. Be pleasantly surprised when one of them only takes a half day and relieved that you were able to apply that second half day to the other who needs it. I often find that when working with several witnesses in a case that this kind of time budgeting can pay off. Many attorneys only allow one or two hours to meet with a witness before a deposition, for example, and are shocked that many trial consultants tell them it is going to take longer.

 

FOURTH SET OF GOALS: FOLLOW UP

 

Follow up takes a few forms in witness preparation.

 

First, there is the question of whether or not another session is going to be needed with the trial consultant prior to the witness's actual testimony. This is why so many consultants recommend that the initial preparation session take place with a comfortable amount of time between the session and the testimony. For example, in my practice I recommend a minimum of two weeks before a deposition for an initial preparation session. That way there is plenty of time to schedule more sessions if the witness needs them. This also allows time for wardrobe changes, hair cuts, and other "costuming" changes that need to take place.

 

Next, there is the question of testimony being delayed. Depositions get postponed and trials get pushed all the time. A witness who is prepped and ready to go for trial in January is not necessarily going to stay prepped until October.

 

Ultimately, the goals with any follow up preparation session are:

•to make sure that the witness is as prepared and ready as possible for testifying.

 

•to make sure that the attorney is well assured of this fact.

 

CONCLUSION

 

It is my hope that this response to a reader's question results in

both a discussion on this topic of "goals" between ASTC members

and The Jury Expert's attorney readers.

 

And please keep submitting questions to be answered by us - it is

our pleasure to answer them!

 

Citation for this article: The Jury Expert, 2010, 22(2), 45-49.


Full Issue   Full Article   Send to a Friend   Rate this article:


Elaine Lewis wrote:
Mar-16-2010
Katherine James, in this superb article, has managed to capture what most consultants have in common while still allowing for the fact that methodology can differ. The article is an excellent reference to cite to attorneys who want clarification on the role of outside consultants in preparing witnesses.

In addition I was particularly impressed by her noting other areas witness consultants address but which most articles on witness preparation don’t often discuss. Specifically she me ...[More]

Comment on this article:


(Optional. We will not publish your email address here or elsewhere.)


Maximum 5,000 characters. Character count: 0

When you submit this message, you give The Jury Expert permission to publish it on the web. As this is a professional journal, editors will publish comments that are courteous and respectful (even when in disagreement). Thanks for participating in the TJE community!


Publication Information

The Jury Expert is now on Twitter (@thejuryexpert)! Follow us for daily news relevant to improving litigation advocacy, understanding jury behavior, resources that aid your practice, and sometimes, stuff that's just plain fun.
http://www.twitter.com/thejuryexpert

The Jury Expert [ISSN: 1943-2208] is published bimonthly by the:
American Society of Trial Consultants
1941 Greenspring Drive
Timonium, MD 21093
Phone: (410) 560-7949
Fax: (410) 560-2563
http://www.astcweb.org/

Editors of The Jury Expert
Rita R. Handrich, PhD — Editor

Kevin R. Boully, PhD — Associate Editor
 

The Jury Expert logo was designed in 2008 by:
Vince Plunkett of Persuasium Consulting

The publisher of The Jury Expert is not engaged in rendering legal, accounting, or other professional service. The accuracy of the content of articles included in The Jury Expert is the sole responsibility of the authors, not of the publication. The publisher makes no warranty regarding the accuracy, integrity, or continued validity of the facts, allegations or legal authorities contained in any public record documents provided herein. Authors retain copyright of their written work. Author supplied graphics which illustrate technology or design ideas are considered the intellectual property of those authors. The Jury Expert itself is copyrighted by the American Society of Trial Consultants (ASTC).