Examinations for Discovery #3 – Prepare Your Witness

How to get your witness ready for an examination for discovery

This is the third in the series of Substack posts on the discovery examination process. To check out the earlier posts, click on the titles: introduction and how to prepare for the examination. For posts on the Five-and-Out Technique and preparation for direct and cross-examinations, scroll through the list of published posts and check them out.

Witnesses bring a variety of backgrounds to an examination. Some are naturally great witnesses – comfortable, credible, thorough and unwilling to speculate. Others are just the opposite in one or more of those attributes. Good lawyers prepare their witnesses for examinations, those that occur at trial or before.

When it comes down to it, lawyers can prepare all they want, but they rely on witnesses to provide evidence to support their cases. Except in criminal and rare civil cases where the defence calls no evidence at all, your witnesses are essential. It should go without saying, but a well-prepared witness increases the value of the case enormously.

Consider this sequence for preparing a witness to testify.

1.     Prepare yourself. Gather the available evidence, review your case analysis and generate an outline to examine your witness.

2.     Prepare the witness. Meet your witness and try out your outline. Where the witness answers in a way you didn’t anticipate or that leads you in a new direction, modify your outline. Follow where the witness leads because you can expect counsel to do so at the examination.

3.     Prepare yourself again with the new information you garnered and adapt your outline and case analysis accordingly.

 The sequence described above applies to examinations for discovery more so than trial. Why? Because you know so much more as you prepare for trial. So why is it that lawyers spend so little time preparing their witnesses for pretrial examinations, whether discovery or depositions?

Let’s take a generic witness. Most have little experience testifying, so let’s assume it’s the first time for this witness. What do they need to know? They are about to face an opposing counsel who will ask difficult questions aimed at attacking what the witness has to say. That is the adversarial system at work, so it’s not personal. But witnesses may not see it that way.

Let’s break your witness preparation into several components. Specific tips and techniques for witness preparation follow the paywall.

Lawyers can’t coach their witnesses. It’s a fundamental principle of legal ethics. But what if the witness asks you how to answer a question? In the next post, we will discuss the difference between coaching and preparing your witness. There are fine lines between the two, and the former is definitely offside.