In the Manhattan criminal trial of former president, Donald Trump, there has been intense media coverage of the testimony of Stephanie Clifford, aka Stormy Daniels, a witness Judge Merchan noted was “difficult to control.” No matter what type of case you have, there are times when you have to put a witness on the stand who is, let’s just say… difficult. Maybe the witness has a temper, or tends to be combative or defensive when challenged. Maybe he just has a hard time answering the question asked instead of digressing into a meandering tangent. Or maybe she comes across as nervous, which can appear evasive. Maybe the witness is overly literal, speaks in jargon or slang, or just doesn’t give very clear answers. What should your lawyer do with a witness who may not make a great impression with the jury?
Sometimes, the answer is simple: if a witness is not necessary to the case, if other witnesses can introduce the evidence you need at trial more effectively, you just don’t call the witness. Having witnesses repeat testimony other witnesses have already competently addressed doesn’t make your case stronger; it makes the jury feel like you’re wasting their time, so don’t be afraid to cut weak witnesses from your must-call witness list if they’re not necessary to make your case. Your attorney will still need to prepare the witness in case the other side wants to call them, but then you are just focusing on the defense – making sure that the witness doesn’t damage your case.
But what if the witness is important? What if there is necessary evidence only they can testify to or introduce? What if their absence from the trial would raise questions among the jurors and give your adversary the opportunity to claim you were hiding damning information from the jury by not calling this person (sometimes called the “empty chair” argument)?
In those cases, your attorneys need to do more work to prepare that witness to present well. Witness preparation is incredibly important for all depositions and trials, but it is vital when the witness is not a natural. Witness prep techniques include everything from helping the witness understand their role in the case, to explaining the basic rules of how to answer questions (focusing on the precise question asked, asking for clarification when necessary before answering, not speculating or guessing, etc.), to walking through practice direct and cross-examinations. Having knowledge of what they can expect goes a long way in calming the nervousness that is a natural response to being deposed or having to testify in court.
But in running through practice examinations, it’s important not to let the witness fall into the habit of giving memorized or “canned” answers. Your lawyer shouldn’t be trying to strip away the witness’s personality or make them across as flat or lifeless. Rather, your lawyer has to help the witness find that balance – reining in bad habits while still letting the witness’s humanity shine through. Properly done, practicing direct and cross-examination can help make many witnesses more comfortable with the process, without the witness coming across as overly rehearsed.
Some witnesses need to review video of their practice testimony or past depositions to get a sense of how they are presenting to the jury. This can be a difficult process as many people would rather have a tooth pulled than to have their body language, tone, and word choice methodically dissected. But for many witnesses, this process is eye opening and can aid them in improving how they handle examination.
Sometimes, despite the best preparation possible, witnesses forget what they practiced and need quick reminders during breaks in their testimony to slow down, focus on the precise question asked, or not let the cross-examining attorney get under their skin. Even witnesses that seemed great in prep might perform less well than expected due to nerves. In these cases, it’s essential your attorney knows how to help the witness regain their cool, instead of making the witness more nervous because of the lawyer’s frustrations.
Experienced trial attorneys know what makes a witness credible to the jury. They know the common errors and bad habits that can sink even an honest and knowledgeable witness who just wasn’t prepared properly. And they know how to work with witnesses who aren’t naturals to help improve their presentation. Our trial attorneys have worked with all different types of witnesses across hundreds of trials, civil and criminal. We have the experience and know-how to help witnesses put their best foot forward with the jury. Bring us your toughest case (and even your most difficult witnesses), we’ll get the job done.