A Cynic’s Guide to Civil Litigation – Final Comment – Evidence; Witnesses and Documents

Lawyers often comment that if they didn’t have a client, they could win every case. Of course, if we didn’t have a client we would not be on trial, but that comment gives you a good idea of how troubling it can be to get your evidence into your case.

Prepping witnesses and coordinating their testimony at trial is a lot like trying to form water into a ball with just your hands. Getting documents into your case also presents a set of problems because most of the time you must use a witness to get the document in.

My best advice is to spend as much time as you can with your potential witnesses before trial to the point where you both feel comfortable. Meet with them each, individually. Ask some general questions to make them at ease. Ask them for an explanation of what happened and probe them for more. Remember, your witnesses may undergo a rigorous cross-examination. Explain the cross examination to them and warn them to be respectful no matter how nasty the other attorney may get.

My common practice is to script out an examination for each witness. This is very time-consuming, but it is the single best way to cover everything you need. I may even script out my own closing argument and highlight areas that require a piece of testimony or evidence that I need. This way, I know which witness will be needed for that evidence. I then review the questions and why I will ask them with the witness to cover that evidence.

We are going to get into more detail with the “A Cynic’s Guide to Civil Trials”, but keep in mind the best way to deal with witnesses and documents at trial is to over prepare. There is nothing more disheartening than to have problems or troubles with witness presentation or admitting documents at trial. For the most part, these problems can be prevented with preparation.

Hope I have helped. Good luck.