Kentucky and Indiana Mechanic's Liens

Article 9 of Uniform Commercial Code

“Tips, Tricks & Traps”
The Legal Collection Process

Witness Preparation

SECTION B

PREREQUISITE TO PREPARATION

Shon Leverett

Before an attorney actually commences with witness preparation, the attorney must be familiar with the overall aspects of the case, the general elements of evidence, the potential witnesses, and then must make a decision as to what witnesses to call. The following factors assist an attorney in determining which witnesses to call:

B.01 COMPETENCY AND CAPACITY

The absolute minimum prerequisites for a prospective witness are testimonial competency and capacity. Testimonial capacity simply means the witness has the intelligence to understand and appreciate the nature of an oath, together with the abilities and opportunities to perceive matters or events which are relevant to disputed factual issues and the mental and speaking ability to recall and narrate those observations. Testimonial competency generally lends itself to the decision of whether a witness’ testimony is credible based upon any mental, physical, or psychological defects or abnormalities, and whether the same prohibits such a witness from being a competent witness.

B.02 INTEGRITY OF WITNESSES

The next aspect that an attorney must determine is whether or not to call a particular individual as a witness based on the integrity of the prospective witness. The role of the attorney is not that of the trier of fact, therefore it is not the lawyer’s function to determine whether a witness-either a non-party or the client-is telling the truth. However, if it is reasonably apparent to an attorney that a witness intends to testify falsely, the attorney has a duty both ethically and practically to make such a determination early on in the case. In such a situation the attorney should reasonably conclude that his or her adversary is at least as intelligent and as perceptive as is the proponent and that a calculated cross examination will disclose to the equally prospective trier of fact of the false nature of the testimony. If the trier of fact, either Judge or jury, concludes the attorney had significant doubts about the truthfulness of the testimony offered such a conclusion could have a great impact on the entire trial which would not support the offering attorney’s position on the case.

B.03 CREDIBILITY OF WITNESSES

In determining whether to offer a witness to testify, an attorney must place himself in the position of the trier of fact to gauge the proposed witness’ credibility. “The attorney must probe the prospective witness in each area in which the cross-examination may illicit impeachment material, assessing for himself how the prospective witness’ likely response to the adverse counsel’s questions will affect credibility; that is, whether the attorney’s determination of the witnesses integrity is likely to be shared by the trier of fact at the conclusion of the witness’ direct and cross-examination.” See Aron at 2-7.

B.04 ABILITY OF WITNESS TO PERCEIVE

“There are few things more embarrassing to a litigating attorney than to hear an essential witness acknowledge under cross examination that he or she really did not perceive the events to which he or she testified on direct examination.” Sometimes the reason this happens may be that the litigating attorney did not consider whether the witness did in fact perceive the event about which he or she testified, i.e. eyewitness account or heresay. Attorneys must verify the prospective witness’ ability and opportunity to perceive the event about which the attorney expects the witness to testify. It is important that the witness disclose to the attorney all of the events which they perceive, whether by sight, sound, first-hand, secondary source, etc. By having an accurate gauge of how the witness perceived the events, the attorney can better determine what testimony to illicit from the witness to maintain credibility.

B.05 ABILITY OF WITNESS TO RECALL

A witnesses ability to recall also plays a vital role in convincing the trier of fact. The attorney must develop an overall understanding of the witness’ ability to recall both major and minor events which have occurred. Although a witness may clearly recall events that support the offering attorney’s version of the events, if that same witness is very foggy on events that do not support the offering attorney’s case, cross-examination of such events as being not as clear may result in the argument that the testimony lacks credibility.

B.06 ABILITY OF WITNESS TO COMMUNICATE

One of the most important factors of a witness is the ability to communicate. A witness that has observed all of the relevant events, and who has an outstanding recollection of those events, is of limited use as a witness absent the ability to communicate such information. The best type of witness is one who speaks clearly, addresses the trier of fact directly, is persuasive, but not overzealous of a particular position.

As a witness, be sure to talk to members of the jury if there is one. If it is a bench trial, the following pertains to speaking to the Judge. Look at them most of the time and speak to them frankly and openly as you would to a friend or neighbor. Do not cover your mouth with you hand. Speak clearly and loudly enough so the farthest juror can hear you easily.