The New Litigators Guide: Your First Witness Preparation Meeting
August 14, 2019 | By: Erin Murray
Witnesses are what make litigation exciting (and a little terrifying). There are two instances in civil litigation where we typically prepare witnesses; our client before their discovery, and our witnesses before trial. Hopefully you have a discovery before you have a trial, so let’s focus on that.
Your goal at this meeting is to help your client give their best evidence. You need to find a theory of the case which fits your client’s evidence- not try to change your client’s evidence to fit your theory. If you are telling your client what to say, you are crossing an ethical line. If there are no winning theories, advise your client to settle, not lie.
So, how can we help our clients give their best evidence without telling them what to say? Here are some ideas:
The Truth. Remind your client often and repeatedly of the importance of telling the truth. Clients can be their own worst enemy. They might try to hide what they view as “bad facts”, and irrevocably damage their credibility when the other side uncovers them. Help your client help themselves by warning them that straying from the truth is the biggest mistake they can make when giving evidence, one that no amount of legal brilliance can fix.
Prior Statements. Before you meet with your client, find out if they gave a statement to the police, their employer, or an insurance adjuster about what happened. Have your client review the statement before your meeting.
Remind Them of Weaknesses. By weaknesses, I mean facts that don’t help your case but are going to be recorded somewhere; a choppy employment history or a prior accident might be examples in a personal injury action. Witnesses are more credible when they acknowledge the weak parts of their story. Your client may need some help remembering and admitting to the facts that don’t help. Request employment and medical records ahead of time, so you can remind them, and explain the credibility problem they will face if they claim a document is false.
Reassure Them. Being examined by a lawyer is unfamiliar to most people. They are likely imagining an episode of The Good Wife is going to transpire. Explain civility and that the Court doesn’t permit lawyers to embarrass or harass witnesses. Clients often do not know that they can’t talk to you privately about their case during discovery. Make sure you tell them this, so they aren’t surprised.
Don’t Let Them Guess. No one wants to say “I don’t know” in response to a question, but that is the right answer if your client doesn’t know. Your opponent is entitled to reasonable estimates if your client is able to do so. If distance is at issue, tell your client to only estimate using a unit of measurement they are familiar with. For instance, most people are better at estimating car lengths then with feet or metres. If seconds are an issue, sit for five seconds in silence with your client before they estimate that small a unit of time passing. People often throw out a number of seconds between two events without any real thought.
As a final thought – make sure that your client knows what your role is at the Discovery. Explain to your client that when they are giving evidence, you will be sitting there taking notes. Make sure they understand that they should answer all questions asked, and that you will only speak if you don’t want them to answer because the question is irrelevant or improper legally.
After you’ve prepared your client, and they’ve done their discovery, what’s next? Hopefully the other side promptly delivers all their undertakings and you can set the matter down for trial! But occasionally, the other party drags their feet and doesn’t give you the information you need to assess your case and take the next steps. My next article will take a look at how to bring an Undertakings Motion, an oft-delegated task to the newest members of the bar.
This piece is part of an ongoing series of blogs by Erin Murray, The New Litigators Guide.
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