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, "The Witness Interview: Dangerous Informality," litigation attorney Dan Small looks at the misconceptions surrounding "informal" interviews and shares how to make sure they don't catch a witness off guard. He warns that even if an interview has a relaxed, friendly feel to it, no one should treat it like a casual conversation. No matter the setting, no matter the people involved, interviews are serious and sometimes risky procedures. In this podcast, Mr. Small notes important questions about the consequences of an interview, emphasizes key points for witnesses to keep in mind when participating in an interview and when asked to be interviewed, and analyzes an instance in which a CEO learned a difficult lesson about the significance of an "informal" interview.

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, "Witness Preparation is Okay," litigation attorney Dan Small shares how to overcome the misconception that preparing for trial is cheating the system. He outlines four issues that counsel needs to address with a witness to make them feel more comfortable about the preparation process: 1) preparation is normal and proper, 2) lawyers just want the truth, 3) be ready for questions about preparation and 4) explain privilege issues. Because privilege issues can confuse even experienced attorneys, Mr. Small takes a deeper look two court cases that clarified the scope of work product protection and sought to resolve tension with the Federal Rules of Evidence.

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, "Witnesses Need to Use Their Counsel," litigation attorney Dan Small concludes his in-depth, 10-part series on the rules for witness preparation. The final rule concerns four crucial ways a lawyer can help a witness while they are on the stand. Lawyers and witnesses should be clear about their relationship and remain vigilant about protecting privilege. Witnesses should be encouraged to take breaks early and often, and when their lawyer makes an objection, they should stop, listen closely and wait before continuing. Finally, in some forms of testimony, witnesses and counsel have the opportunity to review the transcript and submit an errata sheet, an opportunity that should not be ignored. Above all, Mr. Small says, no matter how much time is spent preparing a witness, there is still plenty counsel can do to help them during questioning, and a good lawyer will do everything to provide that assistance.

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, "Do Not Volunteer Information," litigation attorney Dan Small continues his in-depth, 10-part series on the rules for witness preparation. As the title suggests, this discussion focuses on feeling comfortable with silence. In normal conversation, people avoid uncomfortable silences, but in testimony, witnesses should embrace them, following the pattern of question, pause, answer, stop. In this episode, Mr. Small explains two ways to help witnesses do just that: breaking the chain of connections and avoiding volunteering information.

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, "If You Don't Remember, Say So," litigation attorney Dan Small continues his in-depth, 10-part series on the rules for witness preparation. He explains that one of the most obvious rules for witnesses is also one of the most difficult — witnesses can only testify to what they clearly remember. Although it sounds simple, this rule contrasts the patterns of a normal conversation, where people rarely say, "I don't recall," and stop talking. Nevertheless, memory is a key component of being a witness, and Mr. Small outlines several points to keep in mind. He explains why a witness' memory may differ from a questioner's expectations and emphasizes the importance of distinguishing among "No," "I don't know" and "I don't recall." Above all, he says, witnesses should focus on what they do remember and not worry about what they don't.