What makes a Good Witness?
Darnell Smith: “Trials are what you make them about; selecting the right witnesses is a key to obtaining success.”
Have you ever noticed that when you're working on something that you can't quite grasp, you start to be incredibly productive at all the other tasks you're supposed to do? Well that's me now, so I'm writing a blog post.
The task I'm working on is trying to figure out who I need as witnesses to testify at an upcoming trial. This is one of these processes that I intuitively do but as I'm feeling stuck on carrying out this task, I thought it might be helpful to share and articulate what actually makes a good witness. With any luck it will help me get refocused!
The first and most important thing is the relevancy of evidence a potential witness has. Can this witness provide evidence that will help my case or hurt the opposing parties. If no, then there's no then there is no reason to continue considering this person as a witness. Also when you have three witnesses that help in the same way, I recommend picking the best one.
If for example I need to prove my client is a good parent, I may seek to call their friends, their family, their teacher, their neighbors, their colleagues, etc. Each of these people is likely to have information about my client's parenting. So how do I decide between them? I pondered this question and this is what I consider when looking at witnesses boiled into a 3 step criteria:
Ability to observe
Clarity of communication
Reasons to exclude/or like
When I'm looking at somebody's ability to observe, I start with considering their frequency, duration, and recency of opportunity to observe. Frequency is how often the witness comes into contact with the parties, particularly in important circumstances. The Amazon driver might frequently visit the house but they are not seeing anything important, probably. Duration is important as it allows for a more nuanced understanding. You know when you are at the park and your child has a tantrum, you probably feel all the other parents are judging you but they are doing so on such little information. The judge is judging witnesses in the same way. Seeing on thing once might be enough, but generally more time observing makes a better witness. Finally, how recent the information is. If my witness saw the opposing party acting badly some 15 years ago, nobody cares. That same situation two days before trial, bomb shell! If somebody has all three aspects of the ability to observe, their information is likely very valuable.
The value in the information is only as useful as the witnesses capacity to communicate the information clearly. Generalization, platitudes and cliches are the corner stones of poor evidence. We want to avoid the witnesses’ reliability being required to make a conclusion. For instance, I can say “I am a great lawyer”. But for that to be impactful, you have to accept that my opinion is valid. Better I could say “I graduated top of my class, was recruited by 10 different firms, work 12 hours a day, and have never lost a case.” That evidence helps you, or the judge, conclude that I am a great lawyer (with a mild ego problem). The latter statement does not require the listener to trust me about explaining the situation. It is always best to give the information that the listener needs to make a conclusion over stating the conclusion. So stating “they are a great parent” means very little. Better to say what makes them a great parent so the jduge can conclude they are a great parent.
The catch all last consideration is where there is a specific reason to exclude or like a certain witness. Here we have to consider the possibility that the person is biased, has a contradictory past, or some other major issue. My favorite example of liking a witness was when I called an opposing party’s brother. The brother said that he would not allow his kids to have time with the other party. Here the presumed biased helped my evidence. Contrastingly, sometimes my client’s siblings or best friends sound too much like echo chambers, pumping my client’s tires instead of genuinely stating the facts. I like to look for people that are not afraid to make the statements contrary to their interest. They seem more trustworthy.
So there that is how I select witnesses. Probably not much help to anyone but it did refocus me and I got my witness selection done.
Secret tip for working with witnesses #937, gathering all your witnesses together in a room and having a brain storm is an excellent way to compare your witnesses and generate memories. I like to have my client host a gathering with all the witnesses. It provides me context to who they are by seeing their abode and put the witnesses as at ease as they can be talking in a group to a lawyer!