Witness preparation is one of the most important components of trial and litigation practice. A simple but overlooked part of preparation is asking your witness your actual questions. You may have two or twenty essential questions that you must ask to prove your case or deal with the opposing counsel’s anticipated cross exam. I have watched many lawyers prep a witness with broad and indefinite questions as if asking a direct question is somehow unethical or suggestive. On the contrary, asking your witness your questions is ethical and part of being a zealous advocate.
Let the witness know there is nothing improper about your prep. Tell the witness, especially a non-party, that opposing counsel is also preparing her witnesses. You will always be protected from the suggestion of improper witness coaching by telling your witness from the moment you start to prep that she needs to tell the truth.
After the witness gets more comfortable with recalling the events of the case, tell the witness you are going to ask them word-for-word an important question. Tell them your question and their answer is crucial. Then ask the question. Listen to each word. Stop the witness when a choice of words, inaccuracies or demeanor needs to be discussed. Talk to the witness about your concerns. Work on each segment of her answer. Ask the question again. Get the right answer.
