In this penultimate installment of my series on preparing difficult witnesses (DWs) for trial, we get to some of the real nitty-gritty: Learning the story of me, doing a full interview, and then explaining what matters and why. As will become clear, the sequence matters — a lot.

 Learn the DW’s story of me.

People love to talk about themselves, but they seldom get to. Asking the DW to tell you her story allows her to scratch that itch, producing happiness.

I’ve had DWs who you’d think had no one to talk to. They would start talking fast because the freedom to go on about their favorite subject while someone else listened attentively felt unfamiliar. But boy do they like it!

For our purposes, the main point is to get the DW to relax a bit. But you should also pay close attention. You will probably learn personal details that you can use to humanize the DW with the jury. One of my dearest clients grew up in a small Italian town, worked in a movie theater there as a boy, and took a food service job on a cruise ship before emigrating to Dallas with his sweetheart and becoming one of the most successful restaurateurs in Texas. In another case, a distinguished MIT professor of computer science spent a month with his wife cycling across the United States.

This phase of the prep need not take long. It rarely lasts more than 15 minutes. It starts with where the DW was born, where he grew up, and where he went to high school and then shifts to college, family, and work before getting to his involvement in the facts underlying the case. Just remember: you are establishing rapport while digging for gold.

Do a full interview

Now you’ve completed all your homework. You’ve studied the pleadings; re-read the chronology of events and cast of characters; consulted the relevant treatises, case law, statutes, and Bill of Rights provisions; reviewed the jury questions; spent quality time with the key case documents and any prior statements by your DW; surveyed his digital footprint on social media; and checked his litigation history. You’ve also taken him through his confidence-building story of me. Here begins the real fun.

Judge Robert Keeton wrote, in his authoritative Trial Tactics and Methods, that “if you prepare your case properly you will not call a witness to the stand without having asked the witness what his testimony will be on all points as to which you can anticipate he may be questioned.” Your thorough interview of the DW will – along with the materials you’ve assembled – provide the raw material.

The DW’s story of me will naturally segue into her involvement in the underlying facts. Go chronologically. The interview will now begin to slow down as details emerge. Take time to pause on particulars of important meetings and other events. Ask non-leading questions to keep the DW’s narrative moving forward in temporal sequence.

Strive to keep it factual, and let the story come out as straightforwardly as possible. Avoid any talk about claims and defenses. That will come soon enough. In fact, talk as little as possible. Keep the spotlight on the DW’s description of the facts.

Take notes. Really good ones, preferably in Word so you can share them with colleagues. You’ll need them later, not least for when you prepare the first draft of the Hardest Questions memo

Explain what matters and why.

Many DWs will have a vague idea of what the case involves legally. Without a good grasp of the claims and defenses, your DW will not understand the purpose behind your questions on direct or the thrust of your opposing friend’s cross-examination. Give your DW a basic grounding. But make sure not to do it until after the full initial interview. You want to avoid any risk that the legal consequences of the facts might affect the DW’s recollection of them.

Once I defended a big defense contractor against a claim that it had poached a competitor’s employees in order to gain business at the competitor’s expense. The competitor alleged theft of trade secrets, but they had a thin case there. What they really were trying to do, I thought, was simply to prevent the former employees from using their skills to benefit my client.

At the hearing on the competitor’s request for a temporary injunction, we used big boards to blow up parts of the employment agreements for the judge to see. I asked the ex-employees about the contract provisions but added a question about whether the agreements included a non-compete. After the presentation of evidence ended, I argued that the competitor could not win a temporary injunction unless it had a non-compete. Pointing to one of the big boards, I said I would show the court the full text of the competitor’s non-compete. Then I flipped the board over in its easel to display the back side – a perfect blank.

Don’t get cute, though. Make sure that your reviewing of the case’s legal underpinnings aims to enhance the witness’s ability to give truthful testimony, not to skew it one way or another. See Witness Preparation, 68 Tex. L. Rev. at 300-04.

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Next time: hardest questions, dry runs, and maintaining a safe distance.