Advice from a Trial Strategist: Witness Prep

Illustration by Hanna Barczyk

Part II of our four-part series Advice from a Trial Strategist is on witness prep. We seek advice from trial consultant Denise De La Rue. If you don’t know Denise, it’s time you get to know who she is. Denise is an attorney, but she has exclusively worked as a trial consultant and strategist for almost thirty years. Denise has consulted on cases throughout the country. She has worked on some of our country’s most high-profile cases. She handles pre-trial research through facilitating focus groups and mock trials, and helps prepare witnesses from defendants in criminal cases, to clients in civil cases, to expert witnesses. She helps attorneys with trial strategy and participates with counsel in the jury selection process during trial. Our hope is that this series provides more comprehensive information about trial consultant tools and resources available to evaluate cases and during trial, aimed at helping us represent our clients more effectively. 

You are often brought in by attorneys to help prepare their clients or witnesses for deposition or trial. To start, why do attorneys seek out a consultant to assist with witness preparation rather than doing this prep work themselves?

Virtually every time I get called for the first time by a lawyer to assist in witness preparation, it's because it hasn't gone well when the lawyer was trying to do it himself or herself. The reason attorneys call me the second, third, or tenth time is that they realize the benefits of using a consultant to help with client and witness preparation. There are many dynamics at play that make this true. A lawyer is often too immersed in the case and the legal aspects of the case to focus as much on the personal human aspects that are critical to help tell that client’s story. This is one big reason to use a consultant. Another is that a consultant provides a fresh set of eyes on the facts and the situation, bringing a different perspective to the case. And, as you know very well, the attorney-client relationship is complex. When disagreements or disappointments occur during the representation, it can get in the way when preparing someone for testimony. This kind of dynamic or power struggle can be a real impediment. Lastly, there are some things that are just too hard for the lawyer to communicate to the client without damaging the relationship and a third party can deliver the message without harming the relationship between the client and counsel. These are some of the key reasons to consider using a consultant.

When you take on client or witness preparation work do you need to become familiar with the facts of the case?

Absolutely. Other people may not work this way, but I won’t prepare a witness or client without seeing the evidence. That’s the only realistic way to prepare them. The testimony is going to be mired in the facts of the case, so I won't work without reviewing the evidence. One of the reasons I decided to go to law school is because although I had a psychology background and was already doing consulting work, I wanted to understand the rules of evidence. I wanted to learn what a witness can or can’t say in court. So, I thought about auditing an evidence class and decided to just go for it and get a law degree. It’s not that helpful if a client or a witness has beautiful testimony, but they're not allowed to say it. Therefore, I decided I needed to better understand where the dangers are. For example, if there is a great part of the story, but it is going to open the door to the fact that a client has seventeen priors after the defense already won a motion to keep them out, that could be catastrophic. Witness prep isn’t just that the witness has to know how to sit up straight and make good eye contact and speak clearly; they've got to be able to do those things while they're telling this story that's very personal to them.  

What should an attorney not expect from working with a professional witness consultant?

For one, don’t expect an acting coach. I have been asked that many times. Some lawyers expect that somebody who works in witness prep is going to come in and coach the client to be someone they're not. I don't mean tell lies on the stand, but to teach the client to be someone they're not. This is simply unrealistic. The reason that acting coaches work with actors is because they're working with actors. And Meryl Streep and Robert DeNiro get paid the big bucks because it's very hard work and very few people can do it well. So, a lawyer should not expect the witness consultant to come in and be able to wave a wand and turn the client or witness into somebody that they’re not or a professional witness. I always say that the trick in any case – even a business case which isn’t an emotional case – is if the witness’s head and heart are in the right place, the right words, emotion, and expression are generally going to come out. The trick is getting them in the right place so they can respond accordingly. There’s no magic bullet for that. You just have to figure out how to do that with each individual client and work through it until you can get there. 

Do attorneys participate with you during the entire prep session or just part of it?  

Generally, the way I prefer to work is to have the attorney, at least one, with me when I first meet the client. We all meet together at first to get to know each other and talk reasonably candidly about what the challenges are in the case and the evidence. And then I prefer to have some time alone with just the witness or the client. And many times, I'll have a lot of time, you know, over several days depending on the relationship. Sometimes prep work can go on intermittently for months. I like to have that alone time to work up what I think a good direct would be. We'll check in with the lawyer from time to time certainly or call him or her in if there's a certain question or area that we need their involvement in, but I like to get to the point where I could play the lawyer and do most of the direct with the client while the real lawyer observes, and then we transition. That’s how it works ideally for me. 

When you say transition, you mean transition into then the lawyer doing the practice sessions?

Exactly, and obviously the lawyer on the case is going to have their own style and own way of asking questions. There is a lot to do with helping the lawyer and client work out questions that elicit the best answers from the client. Many times, lawyers get frustrated because a client can’t answer a question in quite the way the lawyer wants them to. And the solution is something as subtle as the lawyer changing the question. A lot of the time it’s really just learning and working through what question to ask to get the answer that you're looking for. For example, in a self-defense case a lawyer kept asking the client, “Were you afraid?” and the client kept saying “No.” Again, and again the lawyer tried to explain to the client how fear was an essential element in a self-defense claim, if the client was not in fear, a self-defense claim was not available. But every time the lawyer asked the question whether the client was in fear, he gave the same answer: “No.” You can imagine the level of frustration in the room. But after digging and probing, what came out was that the client was ashamed about the level of his fear and when he started to talk about his shame he would sob. He just couldn’t say out loud that he was afraid. So, I recommended they change the question to, “What did you think would happen when he confronted you?” and the answer was: “I thought he was going to kill me.” The answer expressed fear in response to a different question, and it was an even a better answer. As you can see by the example, although it may seem simplistic, changing the question can make a profound difference.

Do you play an active role through the process in helping to craft the direct questions?  

Yes. Many times, I do. I mean, sometimes when I come in the lawyer already has a draft direct that we can work from, but inevitably, we're going to change some things around that we find out makes it flow better or work better. It’s hard for even the best lawyers to realize every witness doesn't have to tell the story from A to Z. It's like editing a film or a video. Who tells the story best? We're going to tell this part of the story through this witness. We're going to have this other witness tell the other part of the story. So, it may be that the part of the direct that your client stumbles on the most isn’t imperative for the client to get into because you can get it in through another witness. We can just allude to it during the client’s testimony, because by that time another witness will already have testified. So yes, I always have an impact on the development of the direct itself.

I think you told me that you also prepare lay witnesses and expert witnesses. What are the big differences you see in preparing a defendant in a criminal case or a client in a civil case, versus a lay witness or expert witness?

Most of the time an expert witness has testified many times before, so they may not be very excited about working with a witness consultant. But in the end, I think they end up learning some part of the case that they may not have even been aware of that they could champion or piggyback on or reframe differently to express a point that could bolster other parts of the case. So, work with experts is a lot more subtle and nuanced. I have prepared some very well-known experts that even most jurors would recognize, but even witnesses of this nature have to learn the scope of what is appropriate for their testimony in each case and there is still a lot of work to do. A witness like this could talk for two straight hours and be quite compelling, but turning what they have to say into testimony is another animal. Right? Even experts don’t necessarily know the best way to turn their knowledge into testimony. 

Lay witnesses are different. They need to know the bad facts that they can be cross-examined with. You have to make sure that they know what can come at them in cross and that they're not shaken by it, and certainly I've had witnesses who said, you know maybe I'm not the best one for you to call if I'm going to have to say: “No, this wouldn't change my opinion.” Well, it's disappointing, but I'd sure rather learn that in prep than on the stand. It's very common for a lay witness to feel like they are on trial if they are testifying as a lay witness or character witness in support of the defendant. It’s important to empower them and help them understand that whether the case is won or lost, it is not dependent on their testimony. Also helping to synthesize the testimony is important. An outstanding 10-minute witness can sometimes really capture a jury's attention.

What are some of the mistakes that you see lawyers make when preparing a client for testimony? 

I think there's an overall wishing that the client was looking at the case through the same eyes that the attorney is. I think attorneys expect the clients to be where they are, and if they aren't, it's the client's fault. Lack of flexibility and curiosity are probably some of the biggest mistakes that I see lawyers making when preparing a client. These are necessary to help a client tell their story. Rather than forcing a client to see the case and facts the way you see them, try to be flexible and curious to understand how and why the client sees things the way they do. As much as a lawyer can be invested in a case, they won’t ever be as invested as a client or a criminal defendant whose liberty is at stake, so the client’s perspective has incredible merit. 

When you're prepping a witness, whether it's a client or otherwise, do you go over basic rules of testifying in court? What are those basic rules for you?

Yes. One of the most important rules is – listen, listen, listen. The main reason that witnesses get in trouble on the stand is that they haven't listened to the question. They might know a little bit more of what's coming obviously from their own attorney than on cross-examination, but please answer the question that was asked of you and not the question that you thought it was or wish it was. Lots of times when witnesses are rambling, I'll stop and say, “What was the question?” And they won't be able to tell me. So, listening to the question and answering it sufficiently, but not going beyond the question, is really big and mastering it sometimes takes a lot of practice. Another, if they don't know, the best answer is always, “I don't know.” But witnesses want to be helpful. They don't want to lie, but they feel like if they don't know, they should know. That’s another big one – making sure you aren't making stuff up. Not necessarily consciously lying, but making stuff up because they feel if they’re being asked the question, they must or should know the answer. Sometimes you just don't know the answer. Another basic and important rule is: Do not try to be someone other than who you really are. For example, when witnesses all of a sudden want to use lawyer words or repeat words that are part of their defense such as, “I was entrapped.” No, No, No! That word is never going to come out of your mouth. Don't let me ever hear you say the word entrapment. We can think of many words to describe what happened to you that are appropriate for you to say, but it's never that key word. But clients hear the lawyers talking, and they feel like they're part of the team, so they want to start speaking like that. Being very clear about that is a critical rule that I teach. Then there are little things like when there are objections, stop and listen. Listen to what the judge says so that they learn if the judge says, “Sustained,” they should wait for another question but try to remember what the original question was, so they know what information their lawyer was trying to elicit. If they hear “Overruled,” they can answer. Finally, helping them understand their role on the stand. They are not the lawyer. I don’t ever want to see a contest of who’s the biggest jerk when a client is on the stand being cross-examined by the Government or opposing counsel, no matter how aggressive the cross gets. That’s a contest we don’t want a client to win, so you have to work with the client to learn to not take the bait and not get in a power struggle while on the stand.   

Tell us your process for helping the client tell a story through their testimony and is that your goal?

Yes. I would say that's always the goal. The biggest part of that is realizing that the client's life or relevant experience did not start with the event that brings him or her to court. There's always background. There are always things to know that are going to be relevant. I really start with learning a lot about the client and their background because invariably, even if it's facts that you don't use, there are dynamics that may be in play with the client's life that are going to help you understand why they behaved as they did or are behaving as they are now. Just being curious is so important. If I can impart anything to lawyers, it is just to indulge yourself in your own curiosity because I've found when I ask questions that may have nothing to do with the facts of the case that's when you really get “manna.” In other words, that's when you really get gold. You learn the words that clients use to express themselves that are going to make them relatable to the jury. So, I start there and then work up to the facts relating to why they are here. Through this process, sometimes I find out information that even the attorney didn’t know. And the attorney will say to the client, why didn't you tell me that? And the answer is likely, because you didn't ask. To help a client craft testimony that tells a story, it’s essential to learn the client’s entire story rather than just the case story, even in a white-collar accounting fraud case. 

How do you prepare clients and witnesses for cross-examination? 

I’ll start with what is harmful. A lot of attorneys just jump right into a mock cross-examination without preparing a client for the cross-examination. This could be harmful unless the client really needs to be brought down a notch or two and that strategy might work well in those instances. But I've seen a lot of damage done by bringing in an aggressive lawyer friend who doesn't know the client to cross-examine the client. The lawyer friend many times wants to show off to their friend about how good they are at cross-examination, so they just annihilate the client and then tell them how they would've lost the case with their poor performance, as if they don't already know that, and then it's really hard to build back up from there. So, I prepare clients by going through what kind of style of questions are asked on cross, what kind of specific questions they are likely going to be asked and how would they answer those questions. Oops, are you sure that's what you want to say? I would go over things that the client is going to have to acknowledge that he or she did that they are not proud of or that we wish didn't happen, but doesn’t make you guilty. We are not going to spend a lot of time trying to defend or explain those, we are going to simply acknowledge them and move on. There is a lot that we can talk through and help them better understand before jumping into their first actual mock cross-examination. And then I think it's fine for the lawyer to do some kind of soft ball cross-examination, but when it really gets to a final run or closer to the time of testimony, I think it definitely does help the client to have someone that they're not familiar with to come in and cross-examine them so that they get more of an idea of what's it going to be like.

Have you worked with a client or witness and then said to the attorneys, “I don't really recommend this person getting on the stand”?

Oh, absolutely. Especially in the case of a criminal defendant. In a civil case obviously either party can call the client, so you don’t have a right not to take the stand, but if you have a right not to take the stand or in the case of a lay witness or an expert, absolutely. Sometimes it's not only no, but hell no. Sometimes I have to help the lawyers see it, but often they see it too and it’s a mutual conclusion reached after putting in the time to try to prep the client. Many times, the client is actually relieved because they had a sense that they were going to sink the case if they took the stand. Then there are other times when the attorney isn’t sure it is going to be necessary for the client to testify, but they want to be prepared if it is. And that's probably where it lands most of the time in a criminal case. And of course there are the cases where the client absolutely has to take the stand in their own defense, which makes witness preparation that much more critical.

What are some of your greatest successes that you have experienced prepping clients or witnesses? How do you even define that?

I think the biggest category is when I can help bring a client genuineness to their testimony in deposition or on the stand, and thereby allow other people to see who they are and why they may be in the situation they're in; the people making the decisions, whether its jurors, judges, or opposing counsel can then better understand what their role was or wasn't and who they are, which can ultimately result in a favorable outcome. You and I were just talking about a client you entrusted me with, who I think you learned after the fact was judged to be genuine after giving testimony, whereas the other person in the same situation wasn't. I mean, that's huge. That's just huge. Helping a client bring forth the emotion or point of view that is needed or shake the myths of who they are before they testify, is one of my favorite parts of the job.

It is often hard work going through the process of digging deep with the client and the lawyers, but the results can be night and day. So much of what I do is just helping lawyers find the path to get where they want to go. By way of an example, I was brought in to help prep a mother in a civil case, whose son was killed in a boating accident. She was filled with rage and whenever she was asked to explain the events, she was so enraged she came off unsympathetic. I suggested that the attorney not ask the mother to recount the event anymore. People are going to learn the facts of what occurred from other witnesses. Ask her to tell you about her son at six, and then at 12, and then at graduation where there was an empty chair for him. Those questions will show the jury the mother you want them to see. Sometimes people will go from being the worst witness you're the most afraid of to the most compelling. It is really very significant the changes that can be made with enough work and the right kind of work.