Witnesses who are credible and persuasive to juries and bring you to a successful verdict are not born – they are made. Some attorneys believe they are preparing a person sufficiently to testify by simply talking through a recitation of the facts. Good trial attorneys already know that effectively preparing a witness requires far more than that. A lot of the success of a witness depends on how you prepare that person to testify.
It is critical that that witnesses you call be seen as credible so that the testimonial evidence of the witness, which supports your view of the facts, will be relied on by the jury in reaching a verdict. Putting persuasive witnesses on the stand who can tell a coherent story and withstand harsh cross-examination is every skilled trial attorney’s goal. After all, what attorneys say in court is only argument, but what a witness says is evidence that is needed to win the case.
Ensuring that your witness is credible and persuasive requires a lot more preparation than simply making sure that he or she is able to remember the relevant facts. There are many people who may be able to sit in 
your office conference room and recite a set of facts that support your case, but who would be ineffective witnesses without the proper preparation. The art of persuasion has nothing to do with changing with witness’s opinion or honest view of the facts, but only its presentation.
Unless your witness is a professional who testifies routinely, being a witness at a trial is an anxiety-ridden event. We all feel that way when we are asked to do something that is significantly different from our everyday routine. There is even more anxiety once the witness begins to consider the potential consequences of his or her testimony on the parties. To present an effective witness, it is critical that you remove the barriers that are going to increase the witness’ anxiety and keeping him or her from “thinking on their feet” and providing clear, credible answers.
Gary is experienced and effective in assisting attorneys prepare witnesses for trial. One way we help is by removing as many distractions as possible to reduce or eliminate anxiety and allow your witness to concentrate clearly while on the stand. We start with explaining the witness’ role in the proceeding and approximately where he or she fits into the proceeding. If possible, we advise the attorney to show the witness the courtroom while it is not in use (or a similar one) and explain where the witness will be seated and identify the other parties who are expected to be in the courtroom.
Do not take anything for granted in terms of your witness’s understanding of trial proceedings. Gary will explain the order of events as you expect them to unfold at trial. How will the witness be sworn? Who questions the witness first? Then who? What is the role of the judge during questioning? What can you expect from this particular judge? What is the role of the court reporter? How will the witness be shown documents? Will the exhibits be paper documents or on a screen?
As basic as these procedural issues (and many others) are, they will surely help the witness understand the proceeding and their role in it. It will allow the witness to focus better on listening to the question and providing accurate, responsive answers. That is the topic of the next blog entry.
About Carleton Law
Over his career as a Senior Counsel, Gary Carleton investigated and prosecuted many complex litigations including some of the most significant enforcement cases ever brought by FINRA. These included manipulation of the Nasdaq market, trading abuses, sales practice abuses, anti-money laundering (AML), fabrication and falsification of documents, net capital violations, reporting and disclosure violations. One of the most well-known cases Gary prosecuted at FINRA was of Stratton Oakmont, which led to the firm’s expulsion from the securities industry.