Preparing Your Witnesses
Preparing your witness before trial involves meeting with your witness to review the evidence that they will provide, including facts and documents.
If you have more than one witness, you should review the case with each witness individually. In particular, you should review these matters with your witness:
- Evidence that the witness will be giving in court
- Documents that you will be showing the witness in court
- Types of questions that you will be asking in your direct examination
- Types of questions that the other party might be asking in cross-examination
- How to answer the questions clearly (in other words, just give the facts) and
- Courtroom etiquette (See At Court for information on how to behave in Court that you can share with your witnesses)
While you should prepare your witness to give evidence in court, your witness should not give “scripted” answers to your questions. You should not try to influence your witness to change their evidence.
They should be straightforward and honest at all times. If a witness tries to lie or bend the truth in your favour, they will probably only end up hurting your case. Judges are extremely good at telling when they are not being dealt with in a straightforward way.
Refreshing the Witness’s Memory
Trials are often held several years after the event that led to the dispute. Not surprisingly, witnesses may have trouble remembering the details that they are asked to provide to the court. You can help “refresh” your witness’s memory before and during trial.
Before trial, it is reasonable for witnesses to refresh their memories on information and events that they will be asked about. You may talk to the witness about the issues in dispute, and talk about the type of questions that you will be asking. You may also want the witness to review documents that will be introduced into evidence.
Remember that how you prepare your witness may affect the weight the judge gives to the witness’s testimony. For example, if your witness sounds like they are reading from a script you have written, the judge may not believe that her answers were genuine, and not much weight will be given to the evidence.
During trial and with permission from the judge, a witness may refresh their memory by referring to notes or documents that were made closer to the time of the event in dispute. The witness can do this if:
- The document was made near the time of the event, while the witness’s memory was fresh or
- The witness created or reviewed the document around the time it was made and confirmed that it was accurate
The document does not have to be notes or a description of the event in dispute. A witness will often be asked to look at a signature on a document, such as a contract, and verify that this contract is the same one in dispute. Seeing someone’s signature on the document may remind the witness that, in fact, they saw the document being signed.