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Preparing Your Witnesses


“I am the LORD your God, who brought you out of Egypt, out of the land of slavery. … You shall not give false testimony against your neighbor.” 

--  Exodus 20:1, 16.


“Expect no trivial truth from me, unless I am on the witness stand.  I will come as near to lying as you can drive a coach and four.” 

--  Henry David Thoreau (1817–1862) 


Once you know what exhibits you’ll need to present at trial and have worked through what it will take to authenticate each item, you’ll want to begin preparing your witnesses to substantiate your claims in court. The best way to “recruit” favorable witnesses is with a subpoena, which is essentially an order from the court to appear and give testimony relating to the case. If you need your witness to produce documents, records, visual aids or other assisting exhibits, give the witness a subpoena duces tecum.


Since recollections fade and memories can change over time, you will want to approach your witnesses as early in the process as possible – the initial stages of your informal case investigation or the formal discovery period is best – and you will want to interview them pretty thoroughly to familiarize you both with their expected testimony.


Approach your critical witnesses first. Depose those witnesses with perishable memories. Witnesses who saw or heard something at some specific moment in time, like an automobile accident or an act of negligence that contributed to a broken bone, should be approached and subpoenaed before other witnesses, say expert witnesses or those establishing foundation for business records or other less time sensitive evidence.


Subpoena Your Witnesses. You can begin subpoenaing witnesses as soon as your case has been assigned a trial date and most litigants try to complete their witness lists about sixty days from trial. Don’t let the process creep inside the last thirty days or so before trial. Approaching people inside of that thirty-day window is risky at best and even with a subpoena, a key witness may have other commitments that he or she simply can’t escape. And if the judge finds out you have been trying to build your case at the last minute, he (the judge) is likely to excuse your witness and leave your case high and dry.


Subpoenas are free and usually issued by the court clerk. They have blank spaces to fill out the names of the parties and the dates involved. Subpoena all of your witnesses, even those who are eager to testify on your behalf. Some of your witnesses may need an official document to get off from work, while others, like police officers and other expert professionals will not appear without a subpoena. Also, unless you have issued subpoenas, the judge might not allow for a continuance if your witness is prevented from appearing due to personal emergency or illness.


Serving your witness a subpoena involves much the same process as serving summons on your opponent. Each state has fairly detailed instructions to properly render service of process, including filing proof of service forms that record the particulars of who was served, what legal papers were rendered and where the service took place as well as other similar details. Legal firms often employ process servers to deliver complaints, but you can, in most jurisdictions, have anyone (other than yourself as the plaintiff) serve court papers. The subpoena becomes legally binding upon proof of service to the court.


In most jurisdictions, you must offer (tender) witnesses fees to cover court attendance and mileage according to local statute. These and other related court fees are often recoverable if you win your case. Speak up and ask for court fees and costs if the judge neglects for some reason to order them once your case is over and judgment rendered.


Outline Your Questions. Take the time to outline a few of the major questions you will ask each of your witnesses in court. Do this in advance of your trial and let the outlines help you prepare for your opening remarks and direct examination. These outlines should be simple and straightforward ready references you can easily turn to during trial to refresh a lost line of thinking or train of thought. For that reason don’t overload them with every possible question asked from any potential angle. Direct examination of witnesses often unfolds in different directions than you may have intended. For that reason keep your outlines short, perhaps even small enough even to fit on a 3 x 5 card.


A good, short outline will include one or two bullets on the main point of the witness’s story, two or three bullets on the top tier questions you will want to ask, and a bullet or two on any exhibits that may be introduced with the witness.


Direct Examination Outline

·       Witness name:

·       Background information:

·       Important evidence:

·       Critical questions:

·       Exhibits to be introduced:

[1] How and When To Be Your Own Lawyer, Robert Schachner, Marvin Quittner, Avery Publishing Group, Inc., 1993.

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