Witness Preparation

What Witnesses Do

• Supply the facts in the case

•  Two types of witnesses:

  • Lay witnesses: Ordinary persons who testify based upon their personal knowledge and life experiences

  • Expert witnesses:  Persons who testify based upon their qualifications of expertise in their field

• Official source for both witness testimony is:

  •  Witness’ statement

  • Stipulations

  • Exhibits that witness  would reasonably have knowledge of

• The witness statements contained  are regarded as signed and sworn affidavits

• Witnesses may testify to facts stated in or reasonably inferred from the record

• Witnesses are bound by the facts in the record

  • Includes their own statement and stipulations

  • If they testify to facts that contradict that record, they can be impeached

  • However, a witness is not bound by facts in the statements of other witnesses, and witnesses often dispute what other witnesses observed or testify to

• If an attorney asks a question, and there is no answer to it in the witnesses’ official statement, the witness can choose how to answer it within certain parameters:

  • May reply, “I don’t know” or “I can’t remember,” or can infer an answer from the facts they do officially know

    • Inferences are only allowed if they are reasonable

    • If the inference contradicts the witness’s statement, they can be impeached

    • Objections may be made such as  “unfair extrapolation” or “outside the scope of the Mock Trial materials”  

• It is the responsibility of the attorneys to make the appropriate objections when witnesses are asked to testify about something that is not generally known or cannot be inferred from the witness statement

How to Prepare

• Read and memorize the witness statement

• The attorney who’s doing the direct examination works with the witness they are questioning to create a script

  • Know the witness’s weaknesses, draw attention to their strengths and the legal theories of their side

  • Create and use a witness analysis sheet (see sample below) 

• Create a witness profile to help decide how the witness is going to be played

• Act in character for an evening with family and friends

• Decide what the witness is going to wear (costumes are not allowed though)

• Consider attending an acting workshop

• Get into character before you enter the courtroom

• Learn the gender of the other side’s witnesses before each round by:

  • Introducing yourself before the trial starts

  • Creating a gender log for the other team’s witnesses before the trial starts 

  • Looking at the other team’s roster

  • Listening carefully during introduction

• Practice, Practice, Practice

Tips for Direct Examination

1. Tell the truth based on the witness affidavit

2. Stick to the script you have practiced

3. Stay in character during the entire trial, even when you are not testifying

4. Listen to the question

   • Do not answer a question you do not understand

   • Ask for clarification if you do not understand

5. Don’t guess or speculate

   • If you don’t know the answer say “I can’t recall,” or “I don’t know.” 

6. Answer the question asked

   • Do not go into additional information

   • Exception: you and the direct attorney have choreographed something different

7. Control the pace

   • Talk slowly

   • Pause and take a few seconds before  answering the question 

   • Think before you answer

8. Be polite and courteous

9. Look at the jury when you answer the quesiton

   • One of the ballots in the round scores only the witnesses

10. Create drama in the courtroom

    • This is the time to shine – tell your story

    • React instead of just acting 

    • Think of Mock Trial as theater 

11. Stay cool if you or the attorney doing direct make a mistake

    • Clarifying a mistake can add to the appearance of honesty 

    • If the direct attorney gets it wrong, it is OK to disagree with them

    • Planned disagreement can even create drama and the appearance of honesty

12. Use the reporter stance as your default position

    • Back upright, not leaning back or forward, hands clasped in front 

    • Gesture and act from this stance

    • Deviate from this stance for dramatic effect if planned

13. Stop talking if there is an objection

    • Wait for a ruling

    • If objection is sustained, do not answer

    • If objection is overruled, the attorney should re-ask the question 

    • If the attorney forgets, remind them by asking “Could you please repeat the question?” 

Tips for Cross Examination

1. Tell the truth based on the witness’s affidavit

2. Be polite and courteous – do not argue with opposing counsel

3. Stay in character 

4. Listen to the question

   • Do not answer a question you do not understand

   • Ask for clarification if you do not understand

5. Don’t guess or speculate

   • If you don’t know the answer say “I can’t recall,” or “I don’t know.” 

6. Answer the question asked

   • Do not go into additional information

   • Exception: you have choreographed something different

7. Control the pace

   • Talk slowly

   • Pause and take a few seconds (try counting to three) before  answering the question 

   • Think before you answer

   • Slowing down prevents the other attorney from flustering you. 

8. Take charge of your testimony

   • Many times you will have to answer ‘yes’ or ‘no’

   • If the answer needs to be qualified, give the qualification first, then answer ‘yes’ or ‘no’

   • Example: “I saw the car even though it did not have it’s headlights on, yes.”  If you do it the other way around you may be cut off

   • If you are handed an exhibit, take your time to read it

9. Take advantage of the mistakes the attorney makes 

   • Correct the attorney if they get a fact wrong 

   • If asked an open ended question, run with it

     • Give a lengthy answer

     • Use up the other side’s cross examination time

10. Do not look at the jury if the answer  really hurts your case

    • This will emphasize the testimony

    • It’s OK to look at the jury on answers that help make the points you want to make

11. Stay cool if you  make a mistake or are impeached

    • Clarifying a mistake can add to the appearance of honesty 

    • If you are impeached

      • If you need to see a statement, ask for it politely

      • Take time to read it

      • Use up the other side’s cross examination time (making future impeachment less likely)

      • Admit the mistake gracefully

12. Practice your redirect answers

    • Cross examination topics can be anticipated

    • Develop scripted re-directs with the direct attorney

13. Continue to create drama in the courtroom

    • React instead of just acting 

    • Think of Mock Trial as theater 

    • Have fun playing with opposing counsel

      • Example:  cry, give the appearance of being picked on (especially if you are the victim of a crime), get indignant if that is in you character type

      • If you are an expert witness try putting the attorney in their place if you get the chance “No no, counsel, that is not correct”

14. Stop talking if there is an objection

    • Wait for a ruling

    • If objection sustained do not answer

    • If objection overruled, the attorney  should re-ask the question 

    • If the attorney forgets remind them by asking “Could you please repeat the question?”