PREPARATION COUNTS: HANDLING DIFFICULT WITNESSES
Alexander Graham Bell’s timeless phrase, “before anything else, preparation is the key to success”, highlights the crucial role planning and preparing plays in achieving a desired outcome.
In the context of witness preparation this is certainly the case, given that for the majority of people, appearing as a witness in court, where they will be called upon to give evidence and be cross-examined, is likely to be a daunting prospect.
Even the most confident, highly experienced individuals are not immune to intimidation, though some may state otherwise. “Many intelligent, successful people think they can walk into the strange, unnatural and dangerous witness environment without preparation and expect to just ‘tell their story’,” says Daniel Small, a partner at Holland & Knight. “They cannot. To do so is a recipe for disaster.”
In addition to those taking the stand, many lawyers also underestimate the daunting nature of the environment witnesses encounter. “Witness preparation is one of the most important – and yet underrated – parts of any case,” asserts Mr Small. “Too many lawyers – even some very good ones – fail to understand how unnatural and difficult the witness environment is.”
How a witness is prepared for taking the stand is therefore of paramount importance. In many instances, witness preparation sessions are the most important exchanges to take place during a case, rather than the typical adversarial exchanges between a lawyer and a witness in the courtroom itself.
Witness types
Adding to the mix of preparation challenges is that of the ‘difficult’ witness. Such people can be chronic multitaskers, technocrats, busy corporate executives or witnesses who simply are not interested in the truth.
Oct-Dec 2024 issue
Fraser Tennant