The absolute best way to prepare a witness to testify is to have an experience lawyer they’ve never met before cross-examine them. Even if the cross is only on a handful of key topics, there is no better way to prepare.
Client Witnesses versus Other Witnesses
It’s important to bear in mind that what you do to prepare your client is privileged and what you do to prepare other witnesses is not.
Keys to Good Testimony
If you only have 30 seconds to prepare a witness, tell them this:
- Tell the truth.
- Listen carefully to the question.
- Answer the question directly.
- Be yourself.
- Teach the Jury and Judge.
Steps to Prepare a Witness to Testify
The more time you spend with your witness in person beforehand, the better.
If you are preparing your client, ensure they understand the theory of the case and the overall case strategy. This will give them focus.
Witnesses need a comprehensive list of documents to review and copies of the documents. This is part of their homework.
Witnesses need a heads up on the types of questions they may be asked.
Witnesses really appreciate a memo or tip sheet on how to give evidence. They need to appreciate the difference between open-ended questions in direct examination and leading questions in cross-examination.
Once all the above is complete, the real work begins in terms of walking the witness through their direct examination and practising their cross-examination. For a significant witness, this may require a few meetings.
Memo to Witness re Testifying
A comprehensive memo to the witness is a good idea and can cover the following:
- An explanation of the purpose of the memo
- An explanation of the theory of the case (if the witness is your client)
- The date, time and location for Court
- List of documents to review
- Areas they will be questioned about
- Tips on direct examination and cross-examination and the differences
- If it’s a discovery or cross-examination on an affidavit, what undertakings, advisements and refusals are
- Comments on witness likeability
- Comments on the importance of thorough preparation
Ontario Civil Trial Manual
This manual is trial information, not trial legal advice.
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