The Most Important Part of Every Case — Witness Credibility

April 20th, 2010
By: John B. Stephens, Stephens Friedland LLP

The most important aspect of almost every case is witness credibility. If your client is perceived as a liar, you will lose – every time. Judges and jurors are evaluating everything during the witness’s testimony, including how the witness looks, acts and speaks before, during, and after her testimony. Obviously, witnesses must always tell the truth, even about “bad facts.” They must also do so without appearing evasive or defensive.

Despite the importance of this topic, too few lawyers take it seriously. Often, opposing counsel will ask me if he can have “five minutes” with his witness before we start a deposition. Adequate preparation takes a lot more than five minutes. Such an unprepared witness will usually appear to lack credibility even if she is telling the truth.

Most witnesses have little or no background testifying. They need coaching, but it’s too late to coach them during their testimony. Coaching on the record just makes a bad witness worse. A poorly-prepared witness can undermine an entire case.

Recently, I spoke to the Business Litigation Section of the Orange County Bar Association on the topic, How to Protect the “Crown Jewel” of Your Case: Effectively Preparing and Defending Deposition and Trial Witnesses. Together with my fellow panelists, Cameron Jolly of Mixon Jolly LLP and Dr. Janet Palmer of Communication Excellence Institute, I addressed credibility-enhancing techniques such as: (1) preparing to testify to the “bad fact”; (2) avoiding “over-objecting” or coaching on the record at depositions; (3) eliminating surprises for the witness; and (4) using non-verbal communication techniques. Soon, we’ll be delivering this talk at Whittier Law School.

Over the years, I have developed a system that yields truthful and credible testimony from most (I wish I could say “all”) witnesses. For instance, we teach witnesses the procedure of deposition or trial testimony, the issues in the case, the important documents, and how to communicate their answers effectively. Well-prepared witnesses are not only truthful, but are perceived as such. In most cases, they are the difference between winning and losing.

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