Sunday, April 22, 2012

Preparing for Testimony

Practitioners in the security industry may occasionally be called on to provide testimony in some legal proceeding (either a criminal or civil case; during a deposition or at trial; as a fact witness or an expert). While those practitioners who have served as case consultants and/or expert witnesses will probably have had testimony experience, other security personnel may be faced with giving testimony for the first time. Regardless of the inherent knowledge or expertise of a witness, he/she still needs to be credible, effective and persuasive to the Judge and/or jury. To this end, preparation of the witness is very important.

Each attorney has a unique style and strategy and will undoubtedly have an established procedure for prepping witnesses. But here are a few issues that should be considered by anyone preparing to testify:

(1)  One issue that is sometimes overlooked in the preparation of a witness is the fact that he can only respond to the questions asked (a good witness can sometimes find a way to include additional information, but not always). So close collaboration with counsel is very important, not only to prepare for testimony expected during direct examination at trial, but for anticipated cross-examination. There needs to be a clear understanding and agreement of what information needs to be conveyed, the best manner to convey it, and the best manner to counteract aggressive cross examination, including attacks on both personal credibility and the credibility of testimony.

(2)  Even if not specifically demanded in the deposition or trial subpoena, availability of any relevant case materials/files is a good idea. Specific information such as dates, times and/or other technical information is likely to be a subject at issue, so it is better to refer to notes than to give erroneous information which may later be challenged or used to impeach the witness.

(3)  Answering questions “yes” or “no,” or at least as briefly as possible, is always a good idea. But when such a brief answer is not sufficient – such as when additional clarification or expansion is necessary – it is often best not to begin the answer with “yes” or “no” (such as “Yes, but…”) because an experienced attorney may not allow the “but” portion. Rather, it is sometimes better to begin a longer answer with a qualifying statement such as “Unfortunately, that question cannot be answered with a simple ‘yes’ or ‘no’, ” then go on with the full answer.

(4)  It is usually helpful for a witness to be advised of the personality and usual strategies/tactics of the opposing attorney. This helps the witness to better prepare for the demeanor and “personality” of the anticipated proceeding (for example, knowing that a particular attorney focuses just as much on the witness’s background as he does on specific case issues). Knowing what to expect from a particular attorney is a great asset for testimony preparation.

(5)  A witnesses should pause briefly before giving any answer, to allow his attorney the opportunity to object before potentially damaging or unnecessary information is inadvertently given.

Testifying in any legal proceeding is often a stressful and challenging ordeal. So having as much information as possible about what to expect, and being as prepared as possible, goes a long way towards doing a thorough, competent and professional job.