In Preparing Difficult Witnesses for Trial — Part 1, we looked at the four major types of trial witnesses. We also sketched “some of the more significant ethical considerations that govern your dealings with each category”. We then took “a short and non-exhaustive look at the two major privileges that trial lawyers deal with: the lawyer-client privilege and the lawyer work-product doctrine.”

In this post, we’ll cover the necessity for getting really ready and something you may find surprising — the importance of caring.

Get ready. Really ready.

One of my law partners liked to say that he’s never seen a bad witness, but he has observed a lot of lazy lawyers.

He had a point.

To start with the obvious, you can’t get a difficult witness — a DW — ready to face a jury (and your friend on the other side) unless you know the case inside and out. That begins with absorbing the pleadings, mastering the law governing the claims and defenses, and (last but not least) writing out the fact questions the jury will answer. Only then will you have the bones on which you will flesh out the story of the case.

Don’t even think about stopping there. You must also absorb the chronology, learn the cast of characters, and become as one with the most important documents (which in even the most complex case seldom number more than 20).

And you need to gather from your case file and study each email, letter, journal entry, hearing and deposition transcript, and interrogatory answer that mentions the witness. And yes, you must survey the witness’s social media presence and litigation history. Others can look for the tweets, Facebook posts, Yelp reviews, YouTube videos, and LinkedIn profiles and research PACER, Westlaw, Lexis, and Google. But you need to examine the results.

At this point, you may wonder why I’ve started by telling you things you think you already know. I have two answers.

First, the fact that you know you should do something doesn’t mean you will really do it when the time comes. Recall that we have before us the task of preparing DWs for trial. By definition, you face a challenge, and that puts a premium on actually doing what you know you should do but sometimes dispense with doing because (you think) it won’t matter. You need me to remind you of the high stakes and the small margin for error.

Second, thorough preparation gives you something few people have but you will need if you hope to tame a DW – gravitas. It does that because doing the work shows unmistakable respect for the process and establishes you as a serious person. It thus grants you authority on matters of fact and opinion. You will need that and more with a DW, so don’t scrimp on preparation.


Do you see yourself as an advocate who presses your clients’ interests for money? Do you think you have to put your values and beliefs on hold to put your client first?

I sure hope not. Your job as trial lawyer gives you a tremendous opportunity to embody the high ethical standards of the legal profession. That visible integrity makes you worthy of belief and therefore believable. Credibility matters more than almost anything else with judges and juries!

But you need to care. I don’t mean the kind of caring that acting coaches bring out in their students – “Once you learn to fake authenticity, everything else is easy.” In each case, you should find someone, or something, that engages you.

Over three decades of practice, I’ve made friends with executives, lawyers, and employees I worked with. The co-founder of a start-up software company teamed up with me in a local tennis tournament before he took the company public and bought a professional sports team. A farmer faced loss of his farm and livelihood at the hands of a smug supplier who sued him for all he had after crop prices plunged. Concern and personal regard for both helped motivate me to do my best.

Sometimes the principles at stake alone will impel you. Nobody likes a bully, right? Several years ago, a big telecom company tried to crush a tiny rival (my client) with an injunction, partly out of spite. In another, a software vendor played lawsuit gotcha with a licensee (my client). Neither got the hundreds of millions they claimed, both in fact paid money to my clients, the defendants.

Witnesses, including DWs, pick up on your passion, or lack of it. Showing them that you care about the case, about them, or (preferably) about both will make you more effective.

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Our next post will address including a non-lawyer on your team and meeting with the DW.