In a conference room nearly two years ago, I sat as a consultant to a California trial team buried behind juror notebooks, laptops, and abandoned coffee cups. Lead counsel tipped down his readers and said, “He’s a tough witness … I just hope the jury believes him.” My fingers drummed on the rim of an orange mug. “Since when,” I asked after a few seconds, “is hope a strategy?” Admittedly, it was blunt, but with thousands of dollars in costs and many hundreds of hours of attorney time, the lawyer’s wishful expectation was less than reassuring.
With so much riding on witness credibility, the lack of emphasis on witness preparation is often staggering. Despite the enormity of weight live testimony presents, many lawyers default to basic instruction on rules and non-specific generalizations like, “just be yourself” or “just tell the truth.” Somewhat more in-depth consultations can include fundamentals of rapport building with improved eye-contact, vocal projection, and practiced direct and cross-examination sessions. While undoubtedly helpful, Sun Tzu reminds us that, “Tactics without strategy is the noise before defeat.”
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