PRACTICAL TIPS FOR PREPARING WITNESSES J. Gregory Richards 1 (April 8, 2015) (1) Introduction 1. The purpose of this brief note is to suggest some practical tips for preparing witnesses for trial in a civil action. The focus is on fact witnesses as opposed to expert witnesses. The discussion is far from definitive. 2 The intention is merely to provide some suggested approaches to witness preparation. These approaches will need to be adapted to the unique circumstances of a particular case and the distinctive character and capabilities of each witness. (2) Preparing Ourselves First 2. Before preparing a witness to testify, we have to prepare ourselves. We have to know our case, and be able to answer the following questions: (a) What is the Theme of our case? Put another way, how would we express in a single sentence the emotive reason why our client should prevail.? This case is about [fill in the blank e.g., an investment advisor who duped my 80-year old client into investing hundreds of thousands of dollars in a risky business venture that lined the defendant s own pockets ]. 1 Partner, WeirFoulds LLP, Toronto. 2 Articles, papers, and entire books have been devoted to the subject. See, e.g., B. Finlay, T.A. Cromwell, and N. Iatrou, Witness Preparation: A Practical Guide (Toronto: Canada Law Book, 2010).
- 2 - (b) (c) (d) (e) What is the legal Theory of our case? In other words, what legal doctrine, when applied to the facts of our case, results in success for our client at the end of the trial? Has the defendant breached a binding contract and caused our client damages, breached a statutory duty, acted negligently and injured our client, etc.? What Facts do we need to establish to prove our case? What is needed to trigger the legal doctrine or doctrines that allow our client to prevail? Can we prove any facts Without Calling a Witness? There is always risk in calling a witness (at a minimum, the witness is subject to cross-examination). Instead, can the parties agree on any facts, and perhaps even enter into an Agreed Statement of Facts that will reduce the number of witnesses and expedite the trial? Are there facts that can be established through admissions made in a discovery transcript, a Response to Request to Admit, an admitted document, etc.? Are there business records or other documents that can be adduced through the operation of a statute (e.g., the Evidence Act, R.S.O. 1990, c. E.23, s.35, or other legislation)? How does the particular witness being considered Fit into the overall fact pattern that we wish to prove to build the theory of our case? Why does this witness need to be called? What are the facts that need to be established through this witness? (3) Some Basic Rules 3. There are some basic rules in preparing any witness. Beginning with our very first contact with a prospective witness, we must treat the witness with courtesy and respect. Witnesses are valuable assets in any court case. They should be treated as such. 4. As for the prospective witness, the most basic rule that a witness must know, (and be told repeatedly, if necessary), is that their first obligation is to be truthful. Aside from this being a moral and ethical obligation, the reality is that any trier of fact who senses that a witness is not being truthful will discount or entirely reject the witness testimony. Giving honest evidence is Job #1 for any witness. Every witness has to understand this.
- 3-5. This fundamental premise is reinforced by the Rules of Professional Conduct ( RPC ) of the Law Society of Upper Canada. Under rule 5.1-2, as advocates, we shall not knowingly attempt to deceive a tribunal or influence the course of justice by offering false evidence. Nor shall we knowingly permit a witness or party to be presented in a false or misleading way. 6. Other provisions of the RPC speak to how we, as lawyers, are to deal with witnesses. Rule 5.3-1 stipulates that a lawyer shall disclose the lawyer s interest to a witness. In other words, we must tell every witness we contact who we are and who we represent in the context of the dispute. 7. Another basic principle from Rule 5.3-1 is that a lawyer must be careful not to subvert or suppress any evidence or procure the witness to stay out of the way. 8. The RPC also come into play when we deal with witnesses who are part of a corporation or organization that is represented. Reference should be made to rule 7.2-8 to assess whether a potential witness is a person who cannot be contacted without the consent of the legal practitioner acting for the corporation or organization. Such individuals include directors or officers. But there is not always a bright line distinguishing who may be off-limits. Other individuals who may also be in the protected group include those involved in decision-making, or an individual who provides advice, and so on. Organization is defined to include partnerships, unions, and government agencies. It is a good idea to re-read the rule whenever one is dealing with a corporation or organization that is not a client.
- 4 - (4) The Initial Witness Interview 9. The intention of this note is not to be a discussion of how to go about conducting an initial client or witness interview. Rather, it is assumed that the witness you are preparing for trial is someone with whom you have already met and conducted an initial interview. However, one point to keep in mind when meeting with a potential witness for the first time is that it is usually preferable to exhaust the witness memory on relevant issues through the use of open questions before circling back to ask more directed questions focused on particular facts or documents. Get the witness whole story both good and bad. (5) Consider the Perspective of the Witness 10. A good approach in preparing any witness is to consider matters from the perspective of the particular individual. Ask yourself, if I were in the position of this witness, with all of his or her background, capabilities, and experience, what would I like to receive that would assist me? Adopting such an approach will help to guide your preparation decisions in the topics discussed below. (6) What Type of Witness Is The Person? 11. Different types of witnesses give rise to different approaches in witness preparation. A witness who is the instructing client does not need a description about the context of the case. In contrast, an independent witness who has been previously unaware of the case would benefit from a description about the background. A former police officer
- 5 - turned private investigator does not need an explanation of the courtroom set-up, however, a first-time witness may need to be taken to the Court House to see the layout of a courtroom and where they will be seated on the day they testify. An expert witness (beyond the scope of this brief note) will require a far different type of preparation than a fact witness. (7) Is the Witness Friend or Foe? 12. The approach with a witness who is your client, an employee of the client, or otherwise aligned with your client s interests will be different from the approach with an entirely independent or potentially unfriendly witness. With a witness in the second category, different matters come into play that have to be considered in advance. It is generally best to have a student, paralegal, or colleague with you during any meeting or interaction that you have with such a witness. The last thing you need is to have the witness contend at trial that you said or did something which is not true and have no means of establishing this without ceasing to be counsel and becoming a witness yourself. 13. Another way to minimize the risk of dealing with a potentially unfriendly witness is to prepare a summary of the meeting or telephone call with the witness and send it to them, requesting that they make any changes if they see anything that is inaccurate or that they wish to change. If the summary is made at the meeting, and depending on the meeting s dynamic, ask the witness to review the summary at the meeting itself and make any changes in his or her own handwriting, or to initial any changes that are made. A signature at the end of the summary, showing that the witness agrees with its contents, of course, is an added bonus. Be aware that, while a summary may be subject to litigation privilege in your hands,
- 6 - there is nothing to prevent the potential witness from giving a summary to your opponent. All of these considerations need to enter into the pre-meeting calculus in dealing with a non-aligned witness. (8) Being Straight With the Witness 14. We must communicate with all witnesses in a straightforward and honest manner. Aside from being the right thing to do, it helps build rapport with the witness. Rapport between witness and lawyer is vital. Letting a witness know at some point that you are going through the preparation process in part to protect their credibility helps to establish rapport. No person wants to be embarrassed in the witness box. A lawyer should not sugar coat anything or minimize weaknesses. Face up to soft spots in the witness narrative; do not gloss over flaws hoping that your opposition and the trier of fact will not see them. (9) Documents Are Key 15. While people s memories change over time, documents do not. Almost every civil litigation case will, to a large degree, turn on the documents. It is essential that witnesses be given an opportunity to review relevant documents that they authored, read, sent, or received. Prepare a binder with the documents that pertain to the witness. Give the witness time to review it. There are few things as painful as watching a witness at trial flounder and become confused, losing credibility as they go, because the counsel calling them has not given them an opportunity to review the documents. A witness will not appreciate a lawyer who puts them in such a vulnerable position.
- 7-16. If a document is not one that the witness authored, read, sent, or received at the material time, you will have to make a decision as to whether it is appropriate for the witness to review it years later in preparing for the trial. The decision will turn on the circumstances. If the witness is likely to be confronted with the document at trial, this may favour disclosure. On the other hand, if disclosing the document risks contaminating the witness recollection with after-acquired information, this may favour non-disclosure. The important thing is that we make a conscious decision after considering the alternatives. (10) Disclosure of Information To A Witness 17. Linked to the question of what documents should be disclosed to a witness is the broader question of how much information should be disclosed to a witness. Of course, the widest disclosure occurs with the client-witness. But with the non-client witness, care has to be given not to disclose privileged information. Conscious decisions also have to be made about whether making a disclosure of an item of information, privileged or not, may infect the witness recollection or otherwise impair the witness impartiality (e.g., another witness recollection of the events, your theory of the case, an expert s opinion, etc.). 18. One practice that is best avoided is engaging in group interviews or preparation of witnesses. Courts have noted the risks of such a practice. 3 These include a witness recollection being influenced by hearing what other witnesses say about their 3 See, e.g., Gemmell v. Reddicopp, 2005 BCCA 628, paras. 45-47. See also, Report of the Commission on Proceedings Involving Guy Paul Morin (The Kaufman Report ), Recommendations 103, 104, and 108, pp. 36-37.
- 8 - recollection of events, the group preparation becoming the subject of cross-examination, and the weight that a trier of fact is prepared to give to a particular witness testimony being adversely affected as a result of group preparation. 19. While counsel have to be mindful of the risk of contaminating a witness memory and the integrity of the evidence, at the same time, witnesses need to be readied for cross-examination during which competing versions of facts may be put to them. The bottom line, however, is that each witness must give his or her recollection of events, and, as trial counsel, we have to exercise our best professional judgment in a conscious and deliberate manner to ensure that this takes place at trial. (11) Can the Witness Be Put To Work? 20. An engaged individual is a stronger witness than a person who is detached and disinterested. Unfortunately, many witnesses, including clients, fail to understand the importance of preparation. Witnesses often do not wish to spend the time to prepare and think that the lawyer is asking them to spend too much time in preparing. One of our key roles as counsel is to explain in a convincing fashion the importance of preparation. An unprepared or overconfident witness can be a danger to your client s case. 21. If there is a task that a witness can be given and is willing to accept, consider pursuing the opportunity. Reviewing the witness document binder and flagging documents to discuss with you is a good, basic task. A client, or client-associated witness, who is willing to prepare a chronology, summary, numerical analysis, diagram, or some other useful
- 9 - aid may also be highly desirable. Encourage a witness willingness to become engaged in this manner. Above all, encourage a witness to prepare. (12) Give the Witness Enough Time 22. Do not rush witness preparation. As stated, a witness is a critical asset in your case. Protect the witness. Give the witness the best chance to succeed at trial. Provide sufficient time for preparation. (13) Mapping Out the Direct Examination 23. Asking a witness to give testimony at a trial in response to questions you are going to pose as counsel is not unlike asking someone to dance with you on a public stage. The person will want to know the type of dance routine you are proposing to launch into when the music starts and how you propose to move about the stage during the dance. In brief, the person wants to know where you will be going. 24. Similarly, a witness needs some idea of where you propose to go in the course of the examination-in-chief. The witness will need to know the topics you will be covering in direct, the documents that you propose to enter into evidence during the course of the witness testimony (or turn up if there will be agreed document books). The witness will also need to know the order in which you propose to do all of this. Both witness and counsel will benefit from mapping out the direct examination together. During this process, there
- 10 - will be give and take between counsel and witness that will inform decisions on what should be asked, or not asked, during the examination. (14) Practice Runs 25. Going through a practice run of an examination-in-chief can be a great benefit to both the witness and the counsel. It helps both participants understand the mannerisms, expectations, and potential flaws of the other. For a witness who has never given testimony before, or who is unused to public speaking, it can help settle jangled nerves and build confidence. At the same time, however, too many practice runs can over-program the witness, making them sound mechanical and lacking the flexibility necessary to deal with the unforeseen events at a trial (e.g., a change in the order of the examination-in-chief, unexpected questions from the bench, or an imaginative cross-examination). Care has to be exercised not to overdo the practice runs, but a lack of time usually prevents this from occurring in any event. (15) Preparing for Cross-Examination 26. All witnesses need to understand that once called to give evidence, they are subject to cross-examination by the other side. Witnesses also need a clear explanation of how vigorous and probing a cross-examination can be. All witnesses welcome, and will benefit from, the lawyer s assistance in identifying possible avenues of attack by the opposition.
- 11-27. If the witness was questioned at an examination for discovery or other legal proceeding related to the same events, they must read their previous transcript carefully. Explain how a transcript can be used in a cross-examination. Inconsistencies in a witness narrative, problem documents, or particular fears the witness harbours all have to be fully reviewed and discussed. Invite the witness, particularly in the case of a client witness, to comment on what points of weakness they sense that the opposition may seek to exploit. 28. Cross-examination practice runs can be particularly helpful to a witness. The practice run has to be tough, not an ineffectual exercise that will lull the witness into a false sense of security. Having a well-briefed lawyer with whom the witness is not familiar conduct the practice run can be especially beneficial. Unfortunately, there are few cases that are able to justify this luxury. 29. While preparation for cross-examination needs to be tough and vigorous, care has to be exercised not to overwhelm or break the witness. The last thing a witness needs is to have their level of anxiety raised to such a degree that they become dispirited and afraid. In the end, the lawyer must encourage the witness and boost their confidence through effective preparation. (16) Some Dos and Don ts of Cross-Examination 30. There are some basic guidelines that should be explained to witnesses before they are subjected to a cross-examination. They include the following:
- 12 - (i) (ii) (iii) (iv) (v) (vi) (vii) Listen to the question carefully. If you do not understand the question, say so. Answer the question asked. Answer it fully. However, do not run on unnecessarily or answer a question that was not asked of you. Tell the truth in answering every question. The truth is your safe refuge. Always telling the truth to the best of your recollection will help you avoid becoming confused. Do not needlessly argue with the cross-examiner. Yes, the sky is blue on a sunny day. Do not let the cross-examining lawyer put words in your mouth. If you do not agree with the questioner s proposition, say so. Leave any humour to others (i.e., the trial judge). Do not try to be funny yourself. Be polite and calm at all times, even when confronted by an aggressive cross-examiner. If you can keep your cool while the lawyer appears to rant, things are going well. (viii) Do not look at the lawyer who called you as if for help with an answer to a question or inviting an objection to be made. An objection will come when it is appropriate. No objection may mean that you are holding your own, even if it does not feel that way to you. (ix) (x) Focus on each question as it comes. Answer that question to the best of your ability. Do not concern yourself with where things are going. Be brave. (17) Preparing a Witness During the Trial 31. There are significant differences between preparing a witness before trial and during the trial. A litigation lawyer needs to know the rules. One of the fastest ways to draw the ire of the trial judge is to breach one of the rules in handling a witness during trial. Is
- 13 - there an order excluding witnesses? If so, adhere to it scrupulously. Have you read rule 5.4-2 of the RPC recently ( Communication With Witnesses Giving Evidence )? If not, re-read the rule. Memorize it. Do not breach it. Specific restrictions apply to a witness in the course of each of the witness examination-in-chief, cross-examination, and re-examination. Abide by those rules. (18) Conclusion 32. Effective witness preparation is one of the most challenging tasks that a trial counsel faces. It requires legal training, life experience, and human psychology. Given that it is such a human endeavour, witness preparation is perhaps something not capable of being perfected. Nevertheless, it is a skill that can be learned and honed. It is hoped that the points raised in this brief note provide some assistance in pursuing those goals.