witness preparation varies by country

            Posted on February 14, 2016 

           Witness preparation varies by country

Q. Your recent column said that before a witnesses testifies, they should first be prepared to testify by their lawyer. Is such preparation permitted?

If so, what happens in other countries?

A. Every country has different rules for things that we, in the United States, think are normal and proper.

For example, here it could be malpractice if the lawyer fails to carefully go over the facts of the case with their clients by preparing a script with questions and each expected answer. Clients need training on how to testify on direct and cross-examination.

But in the United Kingdom, it is unethical for lawyers to prepare their clients to be witnesses. There, lawyers send witnesses to companies that specialize in preparing people to testify. The main, perhaps critical, difference is that UK witnesses never specifically get prepared for any case-related questions.

Another difference is that here, witnesses testify during direct examination about what happened, when it happened, the effect the events had, etc. Then the witness is cross-examined. So the judge gets to see and hear how each witness looks and sounds while testifying. That, plus testimony from other witnesses, helps the judge assess the credibility of each witness. The more credibility the judge gives you and your witness, the more probable it is that you’ll get a good result.

However, in UK family law cases, each party and witness talks with their respective lawyer. That lawyer prepares a detailed affidavit that contains - what would be in the United States - that person’s direct testimony. At trial, the judge reads each witness’ affidavit. Then that witness is cross-examined by the opposing lawyer. Then there is what the USA calls re-direct and re-cross examination. So unlike a judge here, the UK judge has less of an opportunity to fully evaluate the credibility of each witness. But, so far, both systems have seemingly been acceptable to their respective citizens.

In both systems, you help your case by being as good a witness as possible. If you do well in a deposition, the other side might decide to settle instead of taking the case to trial.

Being a good witness requires training. Well before a deposition and before a trial, if your lawyer has not mentioned it, you need to insist that they spend the time needed, sometimes hours or days, to prepare you to be a witness. Judges expect lawyers to have prepared their witnesses to testify.

Of course, no matter what the system is, each potential witness feels that testifying cannot be something good and everything said will be turned against them. By insisting that you be properly prepared, you won’t feel like a plump ant going to the anteater gallows.