Witness preparation is valuable to case

            Posted on Jan 17, 2016  

            Witness preparation is valuable to case.

Q I’m heading for trial with what I hope will be my soon-to-be ex-wife. My lawyer wants to set up meetings to talk with me and each of my witnesses to prepare them for trial.  

Is that proper?


I.S., Fort Hill

A During my 48 years of trying cases, I’ve seen lawyers who meet their clients at the courthouse where, for the first time, they try to prepare their client to testify. To my mind, waiting so long and giving such little instruction, is malpractice.

Giving testimony is not like talking to your buddy while sipping a brew at a bar. In a trial, you need to listen to the question, be sure you understand every word, think about your answer, and then answer the question with the fewest words possible.
During cross-examination the other lawyer can ask leading questions. The most common starts with: “Isn’t it true that you....” The four best answers on cross examination are: “Yes,” “No,” “I don’t remember” or “I don’t know.”

If you don’t remember, it is because you think you once knew, but right now you forget. The “I don’t know” is used if you think you never knew. In either situation, if you are then shown a document or photograph that refreshes your memory, then you can answer the question. You can also ask the lawyer: “Please rephrase the question.” Or say: “I don’t understand the question. Please rephrase it.”

You must tell the truth, even if some of it harms your case. Every divorce case has its ups and downs. The good thing is you don’t need to win every point. You win if your evidence is just a little stronger and a little more credible than the other side.
Often the lawyers who use the “Isn’t it true…” question toss in two or three things before they get to the question. For example: “When you went to pick up the food you ordered at the restaurant and you got upset over the food your wife ordered, is it then that you decided you wanted a divorce?” If you answer “Yes” you have agreed to all parts of that question – not just that you decided you want a divorce. You have to be alert enough to say: “I think that is two or three questions in one. So please rephrase the question.”

We spend a lot of time preparing our client and each witness about how to testify. We show everyone at least two DVD’s with examples of how to be a good witness. Before they come into the office we send them our booklet titled “How to be an Expert Witness.” We insist they read that material at least twice before they come in to be prepared as a witness.

For any readers who want a free PDF copy of that booklet, please email your request to dearjerry@bostonherald.com