This coming Thursday, I’ll give a talk about Preparing Difficult Witnesses for Trial at the University of Texas law school Civil Litigation Conference in Austin. My series of posts on the subject ends with this one — and it’s the best one of them all, in my view.

Draft the hardest questions (HQs) memo.

Every case turns on a discrete number of tough-to-answer questions. If you thought your business partner cheated you in the Permian Basin deal, why did you turn around and do a Bakken shale deal with him? You knew about an article in Widgets Today! on a new widget design when you applied for a patent on a similar widget improvement, but didn’t disclose it. Why not? Do you really expect us to believe that you met in a back room for three hours with your competitors but didn’t talk about the price increases you all announced the next week?

Your DW will have answers to the HQs, whatever they are, but do you want to first learn them when he takes the stand, perhaps under your opposing-counsel friend’s cross-examination?

No. Your most important and challenging jobs in preparing the DW are to identify these HQs and with his help to figure out the truthful answers that most effectively present your client’s side of the case.

A trial lawyer’s ability to perform this crucial function separates the stars from the also-rans. You will not waste time working on getting it right.

It’s essential that HQs memo reflect the DW’s best, most accurate, and honest recollection of the facts. That is why you must do a thorough interview of the DW and use your faithful recording of her answers in your notes to make a first draft of the memo. To make the point obvious, the memo itself should expressly state, at the outset, that it is simply a draft and is subject to revision as necessary to make it fully accurate.

You can show the HQs memo to the DW if you represent him. The lawyer-client privilege will generally protect it from discovery. The exception for documents that refresh a witness’s recollection shouldn’t apply, not least because it reflects the DW’s recollection.

For any DWs that you don’t have a lawyer-client relationship with, sharing a copy of an HQs memo may risk having it fall into the hands of your friend on the other side. The DW herself may turn over a copy, or you may have to produce it as a relevant but non-privileged document. Although you still should review its contents with the non-client DW to assure its accuracy, the better practice is to do it orally.

Do dry runs.

One article sums up the “practical literature” on witness prep as deeming “the failure to interview witnesses prior to testimony” to constitute “a combination of strategic lunacy and gross negligence.” Witness Preparation, 68 Tex. L. Rev. at 287 (footnote omitted). Almost two decades later, you can say almost the same thing about failing to walk a DW through his trial testimony at least once.

Indeed, the DW needs a good preview of his turn in the witness box more than other witnesses do. Only in that way can you spot issues that could upend the DW’s ability to communicate with the jury truthfully and effectively.

The concerns that make dry runs highly advisable for DWs fall generally into two categories. Let’s call them style and substance.

Style encompasses all the traits that enable a witness to provide testimony that the jury finds persuasive. These include confidence, firmness, tone and volume, consistency, courtesy, engagement with the jury, and candor.

Some people exhibit these virtues effortlessly. DWs generally don’t. Yet many are blissfully unaware of their shortcomings. By doing dry runs with them, you will allow them to observe behavior that can detract from effective communication for themselves.

Take the DW who doesn’t respond to the question. You ask him if he has a watch, and he looks at the timepiece on his wrist and, instead of saying Yes tells you It’s half past two and goes on to describe why he likes Rolexes better than Breitlings and how he thinks the Apple Watch costs more than it should. A couple of instances of asking him Do you remember the question? can go a long way towards curing him of not carefully listening to the question and answering it.

What about the shy DW with the quiet voice? Get her to speak up. Assure her that the jury wants to hear what she has to say. Let her practice using more volume in her answers to your questions.

The know-it-all DW also benefits from feedback on what comes across to others at best as arrogance and at worst as pompous ignorance.

Nor should you neglect cross-examination. The most believable witnesses don’t change their demeanor between direct and cross, but that sort of consistency may not come naturally for your DW. The DW also may lose focus, get angry, or fall into traps unless he has gone through it with you and seen how he can avoid making the same mistakes at trial.

Videotaping questions and answers and then critiquing the DW’s performance can work wonders and is the single most effective way to prepare the DW to testify at trial.[1] People generally – a group that includes DWs – get a bit of a shock when they see themselves on the screen. Being so accustomed to observing themselves only from inside their heads, they may have a highly distorted sense of the impression they make visually and, to a lesser extent, aurally.

Most DWs get a little better after one video review, but they really shine in the third iteration. The first one allows them to make some adjustments, and the second reveals how they over-adjusted or misadjusted. Diminishing returns begin to set in after number three.

Note that, because this aspect of prep concerns technique rather than substance, the questions you ask don’t matter all that much. You may in fact want to ask about things that have nothing to do with the case.

It’s often useful to expose the DW to a variety of cross-examination styles. You may not know who’ll do the actual cross at trial, and the different approaches, manner, and pacing of your colleagues will help assure that, whatever the cross style, the DW will be better able to adjust without discombobulation.

The second category – substance – requires you to bear in mind the ethical constraints on evidence lawyers may sponsor. See Tex. Disc. R. Prof. Conduct 3.3.[2] The goal of review with the DW here relates to getting factual details right. Videotaping has less utility here, but still it’s usually helpful to the DW to see herself grappling with matters of substance and gaining confidence in her ability to get the thrust of her testimony across effectively.

 Maintain a safe distance.

Before ending, let me remind you of a few notes of caution.

The overriding goal of preparing DWs to testify at trial is to effectively present a truthful story that will motivate jurors to find in your client’s favor. Make clear that you and your client want only honest and accurate testimony.

Be aware of the scope and limits of the lawyer-client privilege and the lawyer work-product doctrine. The former will protect essentially all of your communications with your DW client, notably including meetings, conversations, emails, memos, and videos concerning the DW client’s preparation to testify at trial.

The work-product doctrine confers less sweeping protection. Although it may extend to communications about trial preparation with non-client DWs, who may include former employees of your client or its adversary as well as expert witnesses, its efficacy is less certain. That is in part because the doctrine has formal exceptions, in part because it hardly operates at all in the context of testifying experts, and in part because it to some extent depends on the willingness of non-client DWs to maintain confidentiality.


You and I are lucky to be trial lawyers. Our niche in the legal profession calls on us to use all our skills, smarts, and resourcefulness to tell a true story that persuades jurors to find in our clients’ favor. The suggestions I’ve made here for preparing DWs to tell their parts of the story provide tools for you to help them become effective witnesses. Happy trials!


[1] It is common practice to promptly reuse media after each video session.

[2] (a) A lawyer shall not knowingly:

(1) make a false statement of material fact or law to a tribunal;

(2) fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act;

(3) in an ex parte proceeding, fail to disclose to the tribunal an unprivileged fact which the lawyer reasonably believes should be known by that entity for it to make an informed decision;

(4) fail to disclose to the tribunal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

(5) offer or use evidence that the lawyer knows to be false.

(b) If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall make a good faith effort to persuade the client to authorize the lawyer to correct or withdraw the false evidence. If such efforts are unsuccessful, the lawyer shall take reasonable remedial measures, including disclosure of the true facts.

(c) The duties stated in paragraph (a) and (b) continue until remedial legal measures are no longer reasonably possible.

Tex. Disc. R. Prof. Con. 3.3.