Most
lawyers, when they prepare witnesses to testify, are understandably focused on
the key substantive issues. They want to make sure the witness remembers
important points. Great! But in so doing, lawyers often rely on their prepared
questions, leaving little or no room for information not elicited by the
lawyer’s direct questions.
As I prepare
witnesses to testify, they disclose unexpected information that I then present
to the lawyer--often to his/her surprise. Frequently this information has
significant impact, either because it is helpful to a winning argument or it
permits the lawyer to defuse potentially damaging issues. My ability to get
such information is not because of any great magic done by trial consultants,
it’s simply the result of a client-centered witness prep approach. Such
critical information is just as available to the lawyer and readily obtainable
by asking client-centered open-ended questions.
You see, a
witness is highly unlikely to come up spontaneously and voluntarily with all
you need to know, unless prompted with an open-ended question. Why?
1) The client may feel obligated to
answer your direct question directly
2) Your direct question may only
elicit an incomplete description of the situation
Facilitate
your client's giving you all the information you need by asking client-centered
open-ended questions. These encourage the client to tell a story, or describe
an event, feeling or situation however the client wishes. Such questions
generally start with the words “what” or “how” as in; “What about X concerned
you?” “How did you come to Y?” A good follow up is – always – “Tell me more.”
Ask such
questions and your client may very well give you the advantage you need to win
your case.
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