On Witness Preparation

Patrick J Ducharme
Patrick J Ducharme

The importance of the preparation of witnesses cannot be overstated. Most cases, in fact, turn on the performance of the witnesses. But there is no foolproof formula or method to prepare witnesses for trial. They come to us in all types and fashions, and many are, to say the least, a challenge. Some communicate easily and well, others only grudgingly and in monosyllabic grunts. Patience and preparation are all.

Witness preparation, difficult as it may be, is the first important step to changing the level of your success at trial.

We want our witnesses to be poised and confident and to possess great nimbleness of mind. The best way to approximate this ideal state, once all the facts have been gathered, assimilated, and represented in your trial brief, is to subject all potential witnesses, including experts, to an interview process no less rigorous than that of a cross-examination by a skilful prosecutor. The exercise will pay dividends because it familiarizes the witness with an important part of the trial experience and demystifies the process of cross-examination, calming the witness’s fears.

The question trial lawyers are likely asked most by potential witnesses is “What am I going to be asked?” The best response is to take the witness through the most likely cross-examination, a process with an additional benefit for the lawyer too. Inevitably, your own cross-examination of your witness will sharpen you to attend to weaknesses or gaps in your own defence plan and to make the necessary adjustments now rather than in the middle of the trial.

It is unethical, of course, to tailor the evidence of witnesses or to attempt to “correct” their evidence by advising them of other evidence you consider to be preferable. But it is not unethical, and in fact should be part of your proper preparation of witnesses, to fully test them on every aspect of their evidence, so that neither you nor they are taken by surprise at trial. The objective is to assist the witnesses to order and clarify their evidence, still being careful not to alter or distort their recollections to suit your own predilections.

Those who come before the courts to testify are generally unfamiliar with and in fact intimidated by the court experience. They tend to have no or limited awareness of the importance of the impressions they are capable of making upon a judge or jury. They must be advised that even the best witness, the most exemplary person, can make a poor impression if he is unresponsive, argumentative, or unwilling to make reasonable concessions during cross-examination. No witnesses should ever be glib, arrogant, disrespectful or slovenly. Proper preparation of witnesses requires time and persistence. In the current climate, when lawyers are stretched to the limit and compelled to work within the inexcusable restraints of the legal aid tariffs, too few lawyers are willing to make the commitment. In that event, everyone loses.

This was an excerpt from Patrick Ducharme’s book.