Quick Tips

Preparing Witnesses for Deposition and Trial
guest author: Marilyn Stacey

Complex litigation paralegals are the liaisons between clients, witnesses, and the potentially intimidating world of the live courtroom. It's our responsibility to make sure that our client's story is told honestly and convincingly. We must identify the best witnesses, present them with the best evidence, and give them everything they need to tell our client's story to its factual, persuasive best.

Preparing Your Client:

  • Opposing counsel wants your client to tell his (the adversarial side) of the story.
  • His job is to make your client look weak, inconsistent, or dishonest.
  • Your job is to help your client maintain her calm, confidence, and stamina.
  • Provide her with key documents, in chronological order, specific to her knowledge of the facts.
  • Meet with her and your attorney to review evidence, anticipated testimony, and how to present herself (wardrobe, minimal jewelry/makeup, etc.).
  • Alert her to any negative or potentially hurtful documents, and consider with her and your attorney whether there may be an honest response to help minimize the negative document.
  • If being videotaped, make sure your client is not wearing white (washes out on camera), not sweating (reads as "guilty"), and not overlit (invokes an "interrogation" room).
  • Remind her that "less is more" (i.e., listen carefully and answer only what is asked).
  • Make sure she can reach you anytime, day or night, with questions or concerns.

Preparing Third-Party Witnesses:

  • Third-party witnesses are unpredictable, not "your" witnesses, and don't owe your client a thing.
  • Interview thoroughly before deposition, documenting the answers, and alerting your attorney to any subjects to clarify or avoid.
  • Consider (with your attorney's OK) providing documents to the witness to refresh his memory.
  • Avoid sending notes, indexes, or any work product that may be useful to opposing counsel or interpreted as coaching the witness.
  • Avoid communicating anything that might suggest bias or coercion (i.e., rather than "we want you to testify that x,y, z happened," say "we'd like to ask you what you recall about, x, y, z").
  • Even if the witness is cooperative, always issue a subpoena.
  • Contact the witness again personally before serving the subpoena.
  • Know your witness: what approach is most effective with him?  Do you need to be the cheerleader (confidence builder), mom (nurturer), sister (best buddy), girlfriend (admirer), or bad ex-wife (nag)?
  • Make sure the witness knows when to show up (early) and what to wear.
  • Meet him with deep thanks and a sharp eye (is he chewing gum? has he turned off his phone?).
  • After testimony, thank him again and let him know of any next steps.  

Preparing Expert Witnesses:

  • Know the applicable expert discovery rules:  in most courts, communications with experts are discoverable; hence, communications with experts should include no opinions, no directives, and no discussion of strategy.  If you have something substantive to communicate, do it by phone - never in writing.
  • Meet with your expert and attorney to discuss exhibits, anticipated testimony, and anticipated cross-examination.
  • During trial, know where your expert is and how you can reach him, day or night.
  • Before he testifies, check his appearance (dressed appropriately? hot/flushed? laser pointer ready?)
  • After testimony, thank him and let him know of any next steps.


Marilyn Stacey is a litigation paralegal at Ball Janik LLP, with over 20 years of complex litigation experience, including insurance coverage, environmental, construction defect, employment litigation, asbestos, and clergy abuse cases. She handles all aspects of a case from initial client contact to trial preparation and participation, and considers her role similar to that of a line producer on a film - first in, last out, and responsible for everything in between. Ms. Stacey graduated, cum laude, from Occidental College, Los Angeles. She has been a member of the Oregon Paralegal Association and the Portland Paralegal Master's Group, and has lectured at Portland State University paralegal classes.

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