Common Practice, But What Are The Rules? An Analysis of the Witness Preparation Process as Reported by Trial Consultants

Abstract

This study explores the communicative behavior related to a crucial element of the trial process witness testimony. Using a secondary analysis of data initially gathered by the American Society of Trial Consultants (ASTC), this study examines trial consultants perceptions of the role of witness preparation in the litigation process, the goals trial consultants have for witness preparation, as well as the procedures and techniques used during the preparation process. The aim of this analysis is to increase our understanding of the scope of witness preparation practices in two ways. First, it addresses the extent to which established communication techniques are incorporated into the witness preparation process. Second, it examines how the goals and procedures that are utilized reflect the standards and rules of both the American Bar Association (ABA) and the American Society of Trial Consultants (ASTC). Overall, there appear to be three primary themes when discussing witness preparation: procedure, demeanor and/or psychological state, and content. The concept of witness credibility appears to be an important aspect of each theme. Furthermore, knowing what to expect is especially useful in stressful and anxiety-prone situations, such as those common to the courtroom. Similarly, results indicate anxiety reduction as a common goal for witness preparation and is most often reduced through witness education of the process and behavioral techniques such as performance visualization, skills training, and practice. However, preparation regarding the content of witness testimony appears to be an area of uncertainty especially as related to ethical practices. Results of this analysis suggest that additional information regarding standards and guidelines for witness preparation is needed to reduce the ambiguity surrounding the practice, as well as increase understanding as to what is acceptable and what is not.