Let your witnesses guide your themes…not vice versa.
As trial teams prepare for court, theme development is usually an early focus while witness preparation comes much later. And while attorneys typically approach these tasks separately, witnesses are expected to support the developed themes at trial. But often witnesses aren’t comfortable with the themes, and don’t believe the themes tell their story. Indeed, it’s not uncommon for us to spend many hours in strategy meetings with attorneys regarding case themes, only to find out when we begin meeting with the witnesses that their stories are inconsistent with the themes the trial attorneys have already constructed.
Preparing for trial in that order—first themes, then witnesses—creates a witness/theme dynamic that can play out in one of three ways at trial, only one of them optimal:
-In really rare cases, the witnesses are completely attuned to the themes that have already been prepared and can wholeheartedly support them.
-In rare cases, the themes are presented as the attorney desires and the testimony as the witness desires. This uncoordinated approach confuses jurors and is not likely to be successful.
-More often, the attorney emphasizes his/her themes and only questions the witnesses about the portion of the story that is consistent with those themes. The witnesses are absolutely testifying truthfully—and have never been asked not to—but their discomfort with not being able to tell their full story shows. Because they feel boxed in to an incomplete story, they come across as less credible than they otherwise would, and are not as effective as they could be.
Our solution to this friction: Meet with your witnesses first and let the witnesses guide the themes.
In our experience, even good witnesses will not be effective if 1) they don’t feel heard by the company and the trial team, and 2) if they don’t feel completely comfortable with the themes they are endorsing. If your witness is expected to carry the case, the themes have to make sense to them and be consistent with their story. If they aren’t comfortable with the themes, then the witness won’t present well, even if they have the potential to be a great witness.
So, talk to your witnesses. Let them tell their story. And when you have a full understanding of what their story is, let your themes naturally develop from that. We acknowledge that preparing a case in this order requires more effort than the traditional way, but the result will be a higher level of comfort for the witness when testifying and an overall stronger case. Because a comfortable witness is a persuasive witness.
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Tracey Carpenter, Ph.D. and Susan Chiasson, Ph.D. started Carpenter Trial Consulting in 2010. They each have extensive experience in high-stakes civil litigation and specialized expertise in how jurors analyze evidence, assess witnesses, and arrive at verdict decisions.
