In Part 3 of our Preparing Difficult Witnesses for Trial series (see Part 1 and Part 2), we study a key aspect of trial-team dynamics and the necessity of getting face-to-face with difficult witnesses (DWs).

Include a non-lawyer on the trial team.

My firm, Susman Godfrey, assembles a unique trial team for each case. We don’t assign associates or paralegals to partners. The typical trial team also combines lawyers from two or more of our four offices (in Houston, Los Angeles, New York, and Seattle). Partly as a result of the geographic spread of team members, we hold trial team calls, generally on a weekly basis, to talk about task assignments, case developments, strategic issues, and other matters. The calls seldom last more than 20 to 30 minutes, but they almost always include the individual client or representatives of an organizational client.

I’ve found over the years that, for corporate clients, the trial team benefits enormously from having both an in-house lawyer and a business person receive the weekly task assignments memo and participate in the weekly calls. The combination engages both the client’s legal department and its executive management – two groups that don’t always communicate optimally. The manager, who typically finds the process eye-opening, has the ability to access resources that enable the trial team to function more nimbly, smoothly, and effectively.

What does that have to do with preparing DWs? Sometimes, bringing an executive into the trial team prevents him or her – who usually had some involvement in the events underlying the dispute – from becoming a DW. More often, he or she can direct others within the organization to give trial preparation a high priority. You will find that quality especially useful at crunch time! And non-lawyer executives often bring industry-specific knowledge, experience, and perspectives that a team of legal professionals may lack.

Note that it’s essential to have buy-in from the legal department. I’ve experienced delays with clients who are unfamiliar with having a business person as an active trial team member from early in a case. But persistence pays off, particularly if you stress that the main line between outside counsel and management will continue to run through your in-house boss. 


You also can’t fully prepare a DW unless you spend time with him or her. All of the suggestions I make below work far better – and perhaps only – if you meet in person.

Also, you must do it more than once. Indeed, depending on how difficult the DW is, you may need more than two face-to-faces. You’ll need several hours each time.

The need for spending time with the DW in the flesh may seem obvious, but let’s explore the reasons anyway. First come the visual cues you and the DW send and receive. You’ll understand the DW better, and she’ll get more of what you need to convey, if you interact in physical space rather than by phone or – God forbid – via keyboard.

You must size up the DW, too. Does he strike you as trustworthy? Can you believe what he tells you? Is he hiding something? You’ll likely have to do some friendly cross-examination to get at the truth. Even Clarence Darrow couldn’t do that consistently if he didn’t have the DW in sight.

Nor should you discount the importance of bonding. You must maintain objectivity and a professional distance, but that doesn’t require cold-fish treatment. Impress on the DW your fervent wish that she will do a splendid job convincing the jury of the true facts she has personal knowledge of. Stress that your role is to help her communicate the truth effectively and avoid errors and snares that might interfere with doing that. “Whether or not a witness has a stake in the outcome of the case, a lawyer should protect the witness from appearing unnecessarily dishonest, venal, incompetent, graceless, or unintelligent.” Witness Preparation, 68 Tex. L. Rev. at 288-89.

The question of venue arises. Lawyers prefer to meet with witnesses in their offices for reasons of personal convenience and availability of colleagues, documents, conference rooms, and support. Those things count for something with all witnesses, including DWs, but the crucial consideration with the DW is the greater likelihood that you will get the DW’s full attention.

Distractions for the DW abound on the DW’s home turf. That goes especially for executives and other alpha characters, who excel at finding ways to get others to do what they want. Plus you feel off-balance there and hardly in control. Avoid the DW’s offices. Choose a neutral location if for some reason – such as an out of town trial – you can’t meet at your place.

A meeting-by-phone provides a poor substitute for the in-person kind. Do all you reasonably can to avoid the former. But if you must conduct one of your meetings with the DW remotely, at least use a videoconferencing service such as Skype.

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In Part 4: the story of me and conducting a full interview.