Ethical Witness Preparation: Purposes and Strategies

Many future lawyers begin law school with the vision of themselves arguing important cases in courtrooms, but every practicing litigator knows that the majority of civil cases are settled before they ever go to trial. Although your witness might never take the stand in a courtroom, he or she is almost certainly going to be deposed before a court reporter. And before meeting your client at a legal deposition in San Jose, it’s important to prepare him or her thoroughly and ethically.

Understanding the Role of Ethical Witness Preparation

The thought of being deposed is nerve-wracking for many people. The stress of the situation can lead a witness to give more information than is asked for, to give speculative responses, and to display negative body language. The latter issue is problematic if the legal deposition is being videotaped. Thorough witness preparation is a way to mitigate these problems or avoid them altogether. An effective process for witness preparation involves educating the client about what to expect from the deposition and the court reporter, the types of questions that may be asked, and the importance of truthful answers. In addition, witness preparation serves the following purposes:

• It allows the lawyer to evaluate the witness’s recollection.
• It allows the lawyer to consider effective ways of presenting this recollection.
• It provides a means of strategizing ethical ways of defending the testimony of the witness.

Identifying Ethical Strategies for Preparing Witnesses

One of the first steps in ethical witness preparation should be to ascertain whether the witness is already familiar with the format, process, and purposes of legal depositions. Even if the witness has been deposed before, it is imperative to remind him or her that he or she will be under oath and is required by law to answer truthfully. It is ethical to rehearse the witness’s testimony, to review the facts of the case, and to inform the witness of how the law applies to the issues at hand. It is also ethical to advise the witness of the likely questions that will arise during cross-examination. Attorneys may offer suggestions regarding word choice, but only if these suggestions are intended to clarify the testimony—not to substantively change the testimony.