Powerful Witness Preparation

In the latest episode of his "Powerful Witness Preparation" podcast series, "Listen for the Song in Your Witness' Head," litigation attorney Dan Small discusses the all-too-common disconnect between what a lawyer thinks their witness is thinking and what the witness is actually thinking. He explains that the key to building a successful relationship with a witness is to understand your own assumptions, learn their assumptions and then try to pull the two closer together. He uses Los Angeles trial attorney Sidney Kanazawa's metaphor of the song playing in our heads as a way to understand this gap: Both witness and counsel have a song in their heads, and each thinks the other knows that song. However, as a 1990 Stanford study literally showed, these songs amount to random clapping unless explained. Lawyers have to take the time to learn the witness' perspective, understand it and try to change it if necessary. Only by listening for the song in their head can counsel begin to effectively prepare a witness.

In the latest episode of his "Powerful Witness Preparation" podcast series, "What is a Deposition," litigation attorney Dan Small clarifies what a deposition really is. Although very familiar to lawyers, depositions can be confusing for witnesses. Mr. Small explains that misconceptions surrounding the formality of the proceeding, style of questioning and discovery all contribute to this confusion, highlighting that counsel must recognize and address these concerns. He then details what a deposition is, what its purposes are and what witnesses should focus on throughout it. By helping a witness understand both what a deposition is and what it is not, counsel can ensure they enter the proceeding prepared and leave it with a clear and accurate transcript.

In the latest episode of his "Powerful Witness Preparation" podcast series, "Bridging the Gap," litigation attorney Dan Small talks about the challenges of bridging the gap between communicating in a normal conversation and communicating in the witness environment. The former is easy and natural, but the latter is just the opposite, difficult and unnatural. The language, rhythm and goals of each are very different, as are the role of questions. In a normal conversation, questions serve as prompts, moving the conversation in a general direction and maintaining its flow; in the witness environment, questions really are questions, and answering them requires a level of focus and precision rarely used in normal conversation. Ensuring a witness understands this distinction is essential. To illustrate this point, Mr. Small describes an exercise he used to prepare a witness that showed why questions suited for a normal conversation were problematic in a witness environment.

In the latest episode of his "Powerful Witness Preparation" podcast series, "Don't be Intimidated by Documents," litigation attorney Dan Small continues his in-depth, 10-part series on the rules for witness preparation. In this episode, Mr. Small shares how challenging it can be for a witness to answer questions about documents. Often, witnesses feel anxious when the questioning turns to documents, imbuing them with a sense of magic as though anything written must be true. Mr. Small shows how to correct this misunderstanding, emphasizing that witnesses need to consider the credibility of the document, the language used by the questioner in reference to the document and the context of the document. He also outlines three steps to take when questioned about documents — ask to see the document, read the document and ask for the question again — as well as briefly addresses how to approach questions about prior statements.

In the latest episode of his "Powerful Witness Preparation" podcast series, "Playing the Guessing Game is a Losing Strategy," litigation attorney Dan Small continues his in-depth 10-part series on the rules for witness preparation. In this episode, he talks about guessing, a normal human instinct that can leave witnesses in a very deep hole. Mr. Small covers three kinds of guessing — factual details, inferences and hypotheticals — and explains why each one is problematic in the witness environment.

In the latest episode of his "Powerful Witness Preparation" podcast series, "Typical 'Wiggles and Squirms' to Avoid Rephrasing a Question," litigation attorney Dan Small continues his 10-part series on the rules for witness preparation. Picking up from his last episode, "Don't Ask a Question You Don't Understand," he talks about what he terms the "wiggles and squirms" of the witness environment. Much as a child wiggles and squirms when a parent imposes rules and discipline, a questioner will wiggle and squirm when a witness imposes rules and discipline by demanding clear and fair questions. Mr. Small discusses three common "wiggles and squirms" used by questioners and explains how to counteract them.

In the latest episode of his "Powerful Witness Preparation" podcast series, "Be a Relentlessly Polite Witness," litigation attorney Dan Small continues an in-depth discussion of the rules for witness preparation. In this episode, he emphasizes that witnesses must be relentlessly positive and relentlessly polite, not only for etiquette but also for survival. To accomplish this, witnesses must remember who the audience is and what the challenges are. Testifying is not a game where opposing sides are scoring points; a witness' job is to convince the judge and the jury, not argue with the questioner. Mr. Small explains several tips for helping witnesses overcome this challenge, from keeping their cool to not being afraid of details.

In the latest episode of his "Powerful Witness Preparation" podcast series, "Remember, You Are On The Record," litigation attorney Dan Small continues his in-depth discussion of the rules for witness preparation. This episode covers an aspect of witness testimony that makes it an especially strange experience: Everything is on the record. Once words leave a witness' mouth, they can't be taken back. With that in mind, Mr. Small shares two key ideas for witnesses to keep in mind: timing and language. If witnesses slow down, talk in complete sentences and think carefully about the words they're using, they will leave behind a better record.

In the sixth episode of his "Powerful Witness Preparation" podcast series, "Basic Principles for Being a Witness," litigation attorney Dan Small describes the two fundamental principles of being a good witness and explains how to carry them out effectively. Although concepts like "Listen, listen, listen" and "Don't try too hard" may sound easy, knowing how to apply them requires a level of understanding and discipline that can only come through careful preparation.

In the fourth episode of his "Powerful Witness Preparation" podcast series, litigation attorney Dan Small shares the three most common reasons why clients think they don't need to prepare for testimony. He explains how to respond to clients who harbor these misconceptions and shares tools and techniques that have helped him convince clients that witness preparation is key.

In the second episode of his "Powerful Witness Preparation" podcast series, litigation attorney Dan Small dives right into what witness preparation really entails and outlines seven steps lawyers need to take when preparing witnesses for testimony. Mr. Small explains that too many witnesses are not adequately prepared because lawyers fail to realize that being a witness is an entirely different experience than anything the client has been through before. His seven steps for preparation highlight a key idea for both lawyers and clients to keep in mind: Testimony is not a conversation, and much of what makes for a good conversation makes for bad testimony.