Trial preparation of an attorney witness differs from deposition preparation in one critical category counsel must prepare the witness to persuade, not just give basic answers. The key features to preparing the attorney witness are threefold: 1. the witness’ testimony and delivery needs to be consistent between direct and cross examination; 2. the witness needs to know when to look at the jury when answering a question; and 3. the witness needs to be loaded with a handful of safe harbor answers in case he or she ever feels trapped or cornered on cross examination. Let’s briefly examine each of these elements of trial testimony.
Consistency. When a witness is consistent in his or her demeanor and delivery in both direct and cross examination, jurors perceive the witness as being prepared, likeable and believable. On the other hand, when a witness acts and answers one way on direct examination and then acts and answers completely differently on cross examination, jurors perceive that witness as being coached, unprepared and not believable. This consistency is crucial with the lawyer witness.
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