Kentucky and Indiana Mechanic's Liens

Article 9 of Uniform Commercial Code

“Tips, Tricks & Traps”
The Legal Collection Process

Witness Preparation

SECTION A

INTRODUCTION TO LITIGATION

Shon Leverett

A.01 REASONS FOR WITNESS PREPARATION

“Assuming that Shakespeare existed and actually wrote all the dramatic works which have been attributed to him, would he be regarded as one of the great authors of dramatic comedy and tragedy had his works never been performed on a stage? Would Shakespeare’s words alone capture the imagination, transport people into the worlds he created, and make them believe the reality of his stories, without the dramatic performances of the actors and actresses who, under the control of a gifted director, bring those stories to life? Clearly the answer to these questions is no.” Citing Roberto Aron, Jonathan L. Osner, How to Prepare Witnesses for Trial, West Group Publishing, Copyright 1998, Page 1-1. To simply read the works of Shakespeare does not, alone, reveal true greatness and talent that are the works of Shakespeare. Even an assembly of gifted actors and actresses who have never before rehearsed cannot create the magic on stage if they have failed to prepare and are merely reading from scripts. Such a performance would not only lack persuasion, but would also appear disjointed and rather cumbersome.

An audience watching an unrehearsed Shakespeare play is analogous to triers of fact, whether it be the Judge, jury, or whoever, that sits through a trial where none of the witnesses have been prepared in advance of testifying. “Absent purposeful, skillful and assiduous preparation, witnesses will offer only disjointed, uninteresting, and completely unpersuasive bits and pieces of information which are totally irrelevant.” See Aron at 1.2. Thus is the role of the attorney, who acts as the director of the unfolding courtroom drama, to be responsible for the performances of the witnesses in such a way as to not only convey the case in the form of a story, but to attempt to persuade the triers of fact of their purported version of the facts.

A.02 PURPOSE AND PROCESSES OF A TRIAL

“The purpose of a trial is to bring parties together in an orderly and structured fashion, to present their rendition of facts, as they testify them to believe, against a backdrop of rules and guiding principles. The purpose of the trial is not to find the truth, but rather allow the jury to make their decision of what was most likely to have happened at some time well before the trial, based upon the recollections of interested and disinterested persons, which are presented to the triers of fact under procedural, evidentiary, and ethical guidelines.” Aron at 1.2. It is the attorney’s responsibility to bring his witnesses forward, present his side of the case, and ultimately persuade the jury to rule in his favor.

The process of a trial is generally comprised of two loose notions that consist of both the pre-trial stage, and the trial stage. The pre-trial stage is everything that occurs between the filing of an action and the parties ultimate day in court before the trier of fact-either Judge or jury. Typically the pre-trial stage last much longer and includes the gathering of evidence, the discovery process, preparation and filing of pleadings and ultimately researching the principles of law which the attorney believes governs the case. Most, if not all, of the items collected and learned through the pre-trial stage are then ultimately presented at trial in the form of evidence.

A.03 THE SEQUENCE OF THE TRIAL

In order to assist the trier of fact in the performance of their function, the trial is played out in an orderly sequence. Unless it is a bench trial, where the Judge presides as the trier of fact, the initial stage of a trial begins when a jury is selected. The next stage of the trial is generally the first of two opportunities for the representative attorneys for each party are allowed to speak directly to the trier of fact in making opening statements, and giving narratives of the evidence which the advocate believes will persuasively convince the jury that his client’s version of the events is the most likely to have occurred. Opening statements cannot be argumentative, but rather simply provide the jury with a preview of what evidence will be presented during the trial.

Following presentation of opening statements, the Plaintiff will present his witnesses, followed by the defense attorney having the opportunity to cross-examine the Plaintiff’s witnesses. Once the Plaintiff has exhausted all of his witness list, counsel for the Plaintiff will then rest his case, subject to any rebuttal type evidence. Generally the second portion of the trial then begins with the Defendant being permitted to call its set of witnesses therefore placing their version of the facts into evidence. Similarly, as in the presentation of the Plaintiff’s case, during the defense portion of the case, Plaintiff will be able to individually cross-examine each of the Defendant’s witnesses. After all witnesses and evidence has been presented, the Court will then generally permit attorneys for the both the Plaintiff and the Defendant to make closing arguments whereby summaries of the evidence which was presented will be set forth, as well as the attorney being allowed to argue his position and case. The purpose of the closing argument is to persuade the trier of fact of its truth, by summarizing and synthesizing what the trier of fact has heard and seen during the trial, trying to draw the entire “drama together to bring the audience to the conclusion that is desired: That the conflicts of evidence in the courtroom drama, as with the conflicts which unfolded during a dramatic performance, are capable of resolution and that resolution must lead to the truth which is favorable to that attorney’s client.”

Following the closing argument, the Court instructs the triers of fact of the substantive legal principles and sends them off to reach a verdict that is within the predetermined procedural, evidentiary, and ethical limitations.

A.04 DEPOSITIONS VERSUS TRIAL APPEARANCES

Although preparing a witness for deposition may have its similarities as preparing that same witness for trial, the two stages of the case are markedly different. Although at each stage the witness is sworn and responds verbally to questions, the circumstances that surround depositions lend a great deal of divergence from presenting the witness at trial.

Generally, trial witnesses called by an attorney are friendly or, at the worst, neutral witnesses. On the other hand, witnesses deposed by an attorney are usually hostile or, at best, neutral witnesses. Normally the attorney knows what testimony will come from a witness called to testify at trial, whereas the attorney who examines the witness at deposition usually is hearing the testimony for the first time and therefore may have no preconceived idea of what the testimony will be. Therefore, this is one of the main facets of the pre-trial stage which is to prepare not only the attorney, but the witness for what will take place at trial. One can only imagine if the pre-trial stage was not conducted, the day the trial were to take place would be as unpredictable as the Shakespeare example from earlier.

“Finally, and most significantly, the attorney calling a witness to testify at trial wants to illicit favorable testimony from the witness and to persuade the trier of fact of the rightness of the client’s cause. On the other hand, with the exception of using the deposition to preserve favorable testimony for use at trial, the attorney taking the deposition of a witness is not seeking to illicit favorable or anticipated testimony. Rather, by pursuing pre-trial discovery through the deposition, the attorney seeks to discover the limits of the witness’ knowledge in the relevant areas, obtain from the witness information that will lead to admissible relevant evidence, or freeze the testimony of the witness to prevent the witness from changing his or her testimony at trial.

Practically speaking, there are other physical differences between deposition testimony and trial appearances. Generally a deposition will take place in the office of one of the attorneys who is an advocate in the case, whereas trial appearance will be in a courtroom in front of a Judge and Jury. Additionally, typically during depositions the only parties normally present are the witness, the attorney conducting the deposition, a court reporter and most often the opposing attorney. Often you will also find parties to the litigation present to observe the deposition.

Because a Judge is not present during the taking of a deposition, generally there is no one to insure the conduct of the participants does not exceed permissible bounds and without interruption. The significant difference here is that no one is present to control the conduct of the participants and therefore they must police themselves. Finally, unlike the circumstance at trial where, while on the witness stand, the witness is physically incapable and legally inhibited from conferring with an attorney during the examination, during a deposition the witness has the opportunity and privilege of conferring with his or her attorney or the lawyer for the party on whose behalf the witness is expected to testify, with that opportunity and privilege often times taking place between the posing of the question and the witnesses provision of an answer.

A.05 Lawyers have Ethical Obligations in the Preparation and Presenting of Witnesses

These limitations are governed by both the criminal laws of the jurisdiction as well as the ethical constraints of professional responsibilities. The most basic limitation in the preparation of a witness is the criminal laws against prohibition against presentation of perjured testimony. An attorney may not offer, alter or falsify documents or other tangible objects. Additionally, an attorney cannot, either criminally or ethically, influence or try to influence a prospective witness in the testimony which the witness will offer at trial, nor may the attorney conceal adverse evidence, either testimonial or tangible.