Preparing Witnesses to Testify:
“Three Rules of 3”
THIRTEEN BUILDING BLOCKS FOR
BECOMING A GREAT TRIAL LAWYER
David C. Kent
SEDGWICK LLP – DALLAS
Dallas Bar Association
Trial Skills Section
“Even though witness preparation occurs in
practically every lawsuit, it is almost never taught in
law school, not directly regulated, seldom discussed
in scholarly literature, and rarely litigated. Witness
preparation is treated as one of the dark secrets of
the legal profession.”
-- Prof. John Applegate
The Lawyer’s Duty
“[The lawyer’s] duty is to extract the
facts from the witness, not to pour
them into him; to learn what the
witness does know, not to teach him
what he ought to know.”
-- In re Eldridge, 37 N.Y. 161, 171 (N.Y. 1880)
“3 Rules for You”
Rule #1: Know Your Limits
Improper Actions – The Big Four
1. Destruction, alteration or secretion of evidence
2. Obstructing access to witnesses
3. Paying for testimony (bribery)
4. Offering false testimony
Improper Actions #4: False Testimony
• May not “knowingly” offer false testimony
−“Knowingly” = actual knowledge of falsity, but
knowledge can be inferred
• If in doubt, offer the testimony
• Rely on cross-examination and the adversary
system to straighten it out
Permissible Conduct
RESTATEMENT (THIRD) OF THE LAW
GOVERNING LAWYERS § 116:
Interviewing and Preparing
a Prospective Witness
Permissible Conduct
1. Invite the witness to provide truthful testimony
favorable to the lawyer’s client;
2. Discuss the witness’s recollection and probable
testimony;
3. Review the factual context into which the
witness’s observations or opinions will fit;
4. Review documents or other physical evidence that
may be introduced;
Permissible Conduct (Continued)
5. Reveal to the witness other testimony or evidence
that will be presented and ask the witness to
reconsider the witness’s recollection or recounting
of events in that light;
6. Discuss the applicability of law to the events in
issue;
7. Discuss probable lines of hostile cross-examination
that the witness should be prepared to meet;
Permissible Conduct (Continued)
8. Discuss the role of the witness and effective
courtroom demeanor;
9. Suggest choice of words that might be employed
to make the witness’s meaning clear; and
10.Rehearse testimony.
“3 Rules for You”
Rule #2: Know Your Privileges
Know Your Privileges
1. Third Party Witness or Client?
•
Third Party Witness = Not Privileged
•
Client = Privileged
2. Fact or Expert Witness?
•
Fact = Not Privileged
•
Expert = Somewhat privileged

State Court = generally not privileged

Federal Court = somewhat privileged
3. Work Product Privileges
“3 Rules for You”
Rule #3: Know Your Witness
The CEO / Professional
Fair-Weather Friends & Faint-Hearted Heroes
Sergeant Shultz (“I Know Nothing”)
Problem Witnesses:
The Mid-Level Manager
• The “I told you so” manager
• The fired & disgruntled manager
• The Peter Principle manager
“3 Rules for Your Witness”
3 Rules for Your Witness
Checklists
and
The Witness Tutorial
3 Rules for Your Witness
3 Rules for Your Witness
• Tell the Truth
•
•
The Whole Truth
Nothing But the Truth
3 Rules for Your Witness
Rule #1: Tell the Truth
#1: Tell the Truth
It’s not just good advice.
It’s the law.
#1: Tell the Truth
Tell the Truth
= Report the facts
#1: Tell the Truth
Report the facts.
Accurately.
#1: Tell the Truth
Report the facts.
Accurately.
Precisely.
#1: Tell the Truth
Report the facts.
Accurately.
Precisely.
Simply.
3 Rules for Your Witness
Rule #2: The Whole Truth
#2: The Whole Truth
Provide context and meaning
to the facts reported
#2: The Whole Truth
A full and complete answer to
the question asked
Half-truths and misleading answers
don’t count
3 Rules for Your Witness
Rule #3: Nothing but the Truth
#3: Nothing But the Truth
Defend your context
and meaning
Don’t let the questioner define it
for you
#3: Nothing But the Truth
• Answer only the question asked
• Do not volunteer
• Short answers are better than long ones
• “Yes,” “No” and “I don’t know” are
acceptable, if they are correct
• Learn and return to your “talking points”
and “safe harbor” answers
#2: The Whole Truth
vs.
#3: Nothing But the Truth
• Confusing to witnesses
• Potential source of trouble
–“Were you alone with Monica Lewinsky?”
–“It depends on what the meaning of ‘is’ is.”
“3 Rules for Your Audience”
“3 Rules for Your Audience”
Rule #1: Do as Your Mother Says . . .
“3 Rules for Your Audience”
Rule #1: Do as Your Mother Says . . .
SIT UP STRAIGHT!
Sit Up Straight:
The Newscaster Position
Sit on the front edge of the chair
Lean forward 20º
Sit Up Straight
Don’t get tired or lazy!
Sit Up Straight
Don’t get tired or lazy!
Sit Up Straight
Don’t get tired or lazy!
Sit Up Straight
Don’t get tired or lazy!
Sit Up Straight
Don’t get tired or lazy!
Sit Up Straight
Don’t get tired or lazy!
Sit Up Straight
Don’t get tired or lazy!
Sit Up Straight
Don’t get tired or lazy!
“Be Classy, Dallas”
Sit Up Straight
Avoid Busy or Distracting Clothes, Jewelry
or HAIR
Phil Spector
Sit Up Straight
Avoid Busy or Distracting Clothes, Jewelry
or HAIR
Phil
Spector
Sit Up Straight
Avoid Busy or Distracting Clothes, Jewelry
or HAIR
Phil Spector
“3 Rules for Your Audience”
Rule #2: Do as Your Mother Says . . .
“3 Rules for Your Audience”
Rule #2: Do as Your Mother Says . . .
STOP FIDGETING!
Stop Fidgeting
Beware of Body Language
“The Camera Never Blinks”
Stop Fidgeting
Hands flat on the table
Dominant hand on top
Stop Fidgeting
Hands flat on the table
Stop Fidgeting
Hands flat on the table =
control “crazy hand” urges
Stop Fidgeting
Hands flat on the table =
control “crazy hand” urges
Stop Fidgeting
Hands flat on the table =
control “crazy hand” urges
Stop Fidgeting
Hands flat on the table =
control “crazy hand” urges
Stop Fidgeting
Body Language – Arms Crossed
Stop Fidgeting
Body Language – Arms Crossed
Stop Fidgeting
Body Language – Arms Crossed
Stop Fidgeting
Body Language – Arms Crossed
Stop Fidgeting
Facial Expressions -- Anger
Stop Fidgeting
Facial Expressions -- Anger
Stop Fidgeting
Facial Expressions -- Anger
Stop Fidgeting
Facial Expressions -- Anger
Stop Fidgeting
Facial Expressions -- Anger
Stop Fidgeting
Facial Expressions -- Pursed Lips
Stop Fidgeting
Facial Expressions -- Pursed Lips
Stop Fidgeting
Facial Expressions -- Pursed Lips
Stop Fidgeting
Facial Expressions -- Pursed Lips
Stop Fidgeting
Facial Expressions -- Pursed Lips
Oops!
Stop Fidgeting
Facial Mannerisms – Rolled Eyes
Stop Fidgeting
Facial Mannerisms – Rolled Eyes
Stop Fidgeting
Facial Mannerisms – Rolled Eyes
Stop Fidgeting
Facial Mannerisms – Smiles or Smirks?
Stop Fidgeting
Facial Mannerisms – Smiles or Smirks?
Stop Fidgeting
Facial Mannerisms – Smiles or Smirks?
Stop Fidgeting
Body Movements – Shrugged Shoulders
Stop Fidgeting
Body Movements – Shrugged Shoulders
Stop Fidgeting
Nervous Mannerisms – Touching Face
Stop Fidgeting
Nervous Mannerisms – Touching Hair
Stop Fidgeting
Nervous Mannerisms – Tugging Ears
Stop Fidgeting
Nervous Mannerisms – Touching Temples
Stop Fidgeting
Nervous Mannerisms – Touching Lips
Stop Fidgeting
Nervous Mannerisms – Touching Lips
Stop Fidgeting
Nervous Mannerisms – Touching Lips
Stop Fidgeting
Nervous Mannerisms – Touching
Nose
Stop Fidgeting
Nervous Mannerisms – Touching Nose
Stop Fidgeting
Nervous Mannerisms – Touching Nose
Stop Fidgeting
Nervous Mannerisms – Steepling Hands
Stop Fidgeting
Nervous Mannerisms – Playing with Rings
Stop Fidgeting
Nervous Mannerisms – Playing with Rings
Stop Fidgeting
Nervous Mannerisms – Playing with Rings
Stop Fidgeting
Nervous Mannerisms – Playing with Rings
Stop Fidgeting
Body Language – The Exaggerated Sigh
Stop Fidgeting
Body Language – Being Caught Unaware
Stop Fidgeting
Body Language – Being Caught Unaware
Stop Fidgeting
Body Language – “Cool, Calm and Cheney”
Stop Fidgeting
Body Language – “Calm, Cool and Cheney”
“3 Rules for Your Audience”
Rule #3: “How do I get to Carnegie Hall?”
“3 Rules for Your Audience”
Rule #3: “How do I get to Carnegie Hall?”
PRACTICE!
How Do I Get to Carnegie Hall?
Practice before the camera
Recommendations for Witness Prep
• What would your mother say?
• Steer clear of trouble
• The Star Trek mantra
In the End, the Court Wins
An attorney owes his first duty to the court.
He assumed his obligation toward it before he
ever had a client. His oath requires him to be
absolutely honest even though his client’s
interests may seem to require a contrary
course. The [lawyer] cannot serve two
masters, and the one [he] has
undertaken to serve primarily
is the court.
•In re Integration of Nebraska State Bar Ass’n,
275 N.W. 265, 268 (Neb. 1937)
Preparing Witnesses to Testify:
“Three Rules of 3”
THIRTEEN BUILDING BLOCKS FOR
BECOMING A GREAT TRIAL LAWYER
David C. Kent
SEDGWICK LLP – DALLAS
Dallas Bar Association
Trial Skills Section