Avoiding Ambush: Tips for the Successful Preparation and Presentation of Witnesses

Does Your Witness Have Any 'Skeletons in the Closet?'

Diligent plaintiffs' counsel will pursue all avenues to ambush key witnesses adverse to their case by “finding the dirt” on them. They will find this dirt through a variety of tactics including Courtlink searches for divorce proceedings, custody issues, probate proceedings, property disputes, other business disputes and criminal matters such as driving under the influence of alcohol or acts of violence. To avoid ambush, defense counsel must make the same type of inquiry of the witness once a rapport has been established. Information from this inquiry should be used to determine whether the witness will have a reawakening of a difficult emotional time in her life that will shroud their responses and dull her thinking while responding to questions. It is important, therefore, to determine if anything significant was going on in the witness's life during her role in the product's development or marketing.

Most witnesses desire to have legal counsel view them without flaws or frailties and are reluctant to disclose unfavorable information about themselves voluntarily for fear of embarrassment, judgment or retribution. Additional queries, however, need to be made about personal circumstances that may not be a part of the public record such as: physical or mental health issues; family issues with children or parents; workplace issues such as discipline, demotion, promotion and harassment; relationships with co-workers; and professional responsibilities, such as receipt or denial of grants and the publication or criticism of research studies. Festering wounds created by a prior adverse event may continue to aggravate the witness in subtle or overt ways, thereby diminishing her effectiveness. Don't start and stop after learning the witness's substantive knowledge. Start with learning about the witness as a person and determine if you need additional help from a consultant, human resources person or a health care professional to assist the witness to deal with any “skeletons in the closet.”

For example, when a leading researcher was asked during cross-examination why he pursued his Ph.D. in a particular specialization he replied, “because my MCAT scores weren't good enough to get into medical school.” Not only was his response unnecessary to answer the question truthfully, but the witness provided opposing counsel with a window into his soul and some effective impeachment testimony. Had counsel reviewed the educational pathway selected by the witness, the questions regarding his educational choices could have been anticipated and an answer formulated to reflect the witness's credibility and interest in the area in which he eventually specialized.

Is Your Witness a 'Fish Out of Water?'

Many witnesses may be “fish out of water” when it comes to litigation and, therefore, it is your responsibility to help them develop their “land legs.” Trial counsel typically embrace the uniqueness of the courtroom and adopt a style that maximizes their skills in communicating information to a jury and judge by “telling their client's story.” The venue in which most company witnesses have the greatest level of comfort, however, is probably not the courtroom. Many leading researchers and scientists are most comfortable behind a computer looking at data and statistics or in their laboratories and offices. Their daily discussions are with colleagues versed in the same scientific jargon that facilitates the communication of information needed for their jobs.

In addition, many witnesses are not prepared for the adversarial nature of litigation. Seasoned scientists, researchers or marketers may be accustomed to questions about their product for purposes of testing the scientific validity of the data accumulated during development and clinical trials, but may not have any appreciation for the dynamics of being cross-examined by opposing counsel whose sole intention is to discredit their personal and professional integrity. They may not be prepared for queries about financial gains outweighing the safety and clinical benefit to patients and the “push” to get the product on the market before it is ready. Plaintiffs' counsel will paint with a broad brush and act as if every witness had a key role in each of these areas when, in fact, each witness likely had only a “slice of the pie.”

Because many witnesses are out of their element when participating in litigation, it is crucial to assist them to develop comfort with their role in the litigation. It is important to ascertain what level of comfort your witness has when speaking in various situations, such as in front of a peer group, a national meeting attended by her fellow scientists or before a regulatory body. By reviewing the witness's experiences in these settings 'checking her enthusiasm or sense of dread, successes and failures and comfort with the question-and-answer phase of a presentation ' counsel can fine-tune areas of testimonial delivery and expression to enhance the witness's deposition or court testimony. Asking about prior public appearances diminishes the arsenal of plaintiffs' counsel. Accordingly, defense counsel should review any prior presentations, statements at governmental investigations or other professional organizations not only to determine any prior inconsistent statements, but also to look at the witness's word choice, fluidity, persuasiveness and neutrality when responding to questions.

Is Your Witness Afraid of Something?

Often a witness's reluctance to answer certain questions, or to be less than forthcoming, comes from a fear of retaliation by the company. Does the employee feel pressured to provide testimony that she feels is false in order to save her job? Has the witness learned about threats against others that raise her level of concern regarding job security? If she has been a whistle-blower, does she need separate counsel to prepare her as a witness and to prevent any additional allegations of retaliation or threats to testify “along company lines?”

After the witness's fears are identified, they must be addressed. First, one must identify whether the witness's fears are justified. Frequently no factual basis exists for such fears, which are often instigated by information portrayed in movies, books or on TV investigative programs. Thus, defense counsel should determine if the company has a policy on corporate compliance, anonymous reporting of concerns about fraudulent conduct and a prohibition against retaliation that would help alleviate the witness's fear of retaliation.

Defense counsel should also request and review the witness's personnel file and discuss any concerns documented in the file or raised by the employee with the human resources director. If this employee has been, or is on, probation, defense counsel needs to know the reasons for it in order to avoid ambush.

Where Is All the Hostility Coming From?

Many attorneys feel as if they were hit by a Mack truck loaded with hostility and resentment after their initial meeting with a company witness. If this happens, make sure to consider whether the anger and hostility is rooted in another location when reflecting upon the witness's demeanor and statements. Is it possible that defense counsel reminds the witness of an ex-spouse, an abusive parent, a boss or a co-worker perceived to have been wrongfully promoted ahead of the witness? Like it or not, not every attorney-witness relationship is a winner. If you are having difficulty interacting with a witness, consider having another attorney of the opposite gender or style meet with them to see if the same type of adversity manifests at the next meeting. Just as marrying the love of your life may also mean gaining in-laws you detest, defending a product liability case may also result in interacting with company employees who just do not “click” with you. Such occasions may require you to set aside your ego in order to maximize the defense of your case.

Tears from Heaven

Without playing Monday morning psychologist, defense counsel must develop the ability to recognize that some witnesses need outside professional assistance. Individuals who are under significant stress for reasons unrelated to your case, such as a divorce or a death in the family, may not be able to participate meaningfully in their preparation or to give cogent testimony. Taking the time to get to know the witness personally, her family, successes and failures will provide a glimpse of the witness's understructure that may need repair by someone other than legal counsel. Some witnesses just need to know “it is okay” to suffer depression, anxiety or other conditions and that they do not demonstrate weakness or incompetence. Encouraging a witness to consider professional help may give her the freedom to pursue that avenue and address the complicated issues that may impede her participation in and, ultimately, the defense of your case.

Once Upon a Time …

Former company witnesses present unique challenges, particularly if they were terminated or left the company under hostile or untoward circumstances. While there are many legal issues that may relate to interviewing this witness (such as attorney-client privilege and the potential claim of witness tampering, which are outside the scope of this article), counsel is reminded that first and foremost, this witness should be viewed as a person. Even if you anticipate hostility, the civility you demonstrate during your interactions with this witness will enhance your working relationship and minimize the witness's need to strike out against the company. This witness will appreciate counsel who not only wants to discuss the facts of the case, but who cares about her as well. These considerations are crucial to minimize any unwelcome surprises that could ambush the defense of your case. Obviously each and every witness and case is unique, thereby requiring your discretion when utilizing these techniques. The utilization of these techniques, however, will greatly help you tailor an effective defense.

Kimberly D. Baker is a litigation attorney practicing at Williams, Kastner & Gibbs in Seattle, WA. She holds a nursing degree and handles product liability, employment and medical liability litigation.

A successful defense against a consumer's claim that she was damaged from using a medication manufactured by one of your pharmaceutical clients may hinge significantly on the testimony provided by a research scientist, a pharmacologist, or perhaps a warnings or a marketing specialist. While these witnesses have key sources of knowledge about the product, its development, testing, labeling and/or distribution, they may also bring with them fears and inadequacies that could result in the ambush of your defense.

Too often defense counsel wear blinders as they steer toward the presentation of their “defense.” They focus on causation or science without determining whether the witness they are relying upon to present key information will be able to present evidence comfortably and credibly to a jury.

To maximize a witness's effectiveness at deposition or trial, defense counsel should first do a “check up” on the well being and comfort level of the witness in the litigation in order to determine what fears or anxieties surround her transition from laboratory, boardroom, or sales meeting to the court reporter's office or the courtroom. Long before the doors of the courtroom are entered, defense counsel should take into account the following considerations.

Does Your Witness Have Any 'Skeletons in the Closet?'

Diligent plaintiffs' counsel will pursue all avenues to ambush key witnesses adverse to their case by “finding the dirt” on them. They will find this dirt through a variety of tactics including Courtlink searches for divorce proceedings, custody issues, probate proceedings, property disputes, other business disputes and criminal matters such as driving under the influence of alcohol or acts of violence. To avoid ambush, defense counsel must make the same type of inquiry of the witness once a rapport has been established. Information from this inquiry should be used to determine whether the witness will have a reawakening of a difficult emotional time in her life that will shroud their responses and dull her thinking while responding to questions. It is important, therefore, to determine if anything significant was going on in the witness's life during her role in the product's development or marketing.

Most witnesses desire to have legal counsel view them without flaws or frailties and are reluctant to disclose unfavorable information about themselves voluntarily for fear of embarrassment, judgment or retribution. Additional queries, however, need to be made about personal circumstances that may not be a part of the public record such as: physical or mental health issues; family issues with children or parents; workplace issues such as discipline, demotion, promotion and harassment; relationships with co-workers; and professional responsibilities, such as receipt or denial of grants and the publication or criticism of research studies. Festering wounds created by a prior adverse event may continue to aggravate the witness in subtle or overt ways, thereby diminishing her effectiveness. Don't start and stop after learning the witness's substantive knowledge. Start with learning about the witness as a person and determine if you need additional help from a consultant, human resources person or a health care professional to assist the witness to deal with any “skeletons in the closet.”

For example, when a leading researcher was asked during cross-examination why he pursued his Ph.D. in a particular specialization he replied, “because my MCAT scores weren't good enough to get into medical school.” Not only was his response unnecessary to answer the question truthfully, but the witness provided opposing counsel with a window into his soul and some effective impeachment testimony. Had counsel reviewed the educational pathway selected by the witness, the questions regarding his educational choices could have been anticipated and an answer formulated to reflect the witness's credibility and interest in the area in which he eventually specialized.

Is Your Witness a 'Fish Out of Water?'

Many witnesses may be “fish out of water” when it comes to litigation and, therefore, it is your responsibility to help them develop their “land legs.” Trial counsel typically embrace the uniqueness of the courtroom and adopt a style that maximizes their skills in communicating information to a jury and judge by “telling their client's story.” The venue in which most company witnesses have the greatest level of comfort, however, is probably not the courtroom. Many leading researchers and scientists are most comfortable behind a computer looking at data and statistics or in their laboratories and offices. Their daily discussions are with colleagues versed in the same scientific jargon that facilitates the communication of information needed for their jobs.

In addition, many witnesses are not prepared for the adversarial nature of litigation. Seasoned scientists, researchers or marketers may be accustomed to questions about their product for purposes of testing the scientific validity of the data accumulated during development and clinical trials, but may not have any appreciation for the dynamics of being cross-examined by opposing counsel whose sole intention is to discredit their personal and professional integrity. They may not be prepared for queries about financial gains outweighing the safety and clinical benefit to patients and the “push” to get the product on the market before it is ready. Plaintiffs' counsel will paint with a broad brush and act as if every witness had a key role in each of these areas when, in fact, each witness likely had only a “slice of the pie.”

Because many witnesses are out of their element when participating in litigation, it is crucial to assist them to develop comfort with their role in the litigation. It is important to ascertain what level of comfort your witness has when speaking in various situations, such as in front of a peer group, a national meeting attended by her fellow scientists or before a regulatory body. By reviewing the witness's experiences in these settings 'checking her enthusiasm or sense of dread, successes and failures and comfort with the question-and-answer phase of a presentation ' counsel can fine-tune areas of testimonial delivery and expression to enhance the witness's deposition or court testimony. Asking about prior public appearances diminishes the arsenal of plaintiffs' counsel. Accordingly, defense counsel should review any prior presentations, statements at governmental investigations or other professional organizations not only to determine any prior inconsistent statements, but also to look at the witness's word choice, fluidity, persuasiveness and neutrality when responding to questions.

Is Your Witness Afraid of Something?

Often a witness's reluctance to answer certain questions, or to be less than forthcoming, comes from a fear of retaliation by the company. Does the employee feel pressured to provide testimony that she feels is false in order to save her job? Has the witness learned about threats against others that raise her level of concern regarding job security? If she has been a whistle-blower, does she need separate counsel to prepare her as a witness and to prevent any additional allegations of retaliation or threats to testify “along company lines?”

After the witness's fears are identified, they must be addressed. First, one must identify whether the witness's fears are justified. Frequently no factual basis exists for such fears, which are often instigated by information portrayed in movies, books or on TV investigative programs. Thus, defense counsel should determine if the company has a policy on corporate compliance, anonymous reporting of concerns about fraudulent conduct and a prohibition against retaliation that would help alleviate the witness's fear of retaliation.

Defense counsel should also request and review the witness's personnel file and discuss any concerns documented in the file or raised by the employee with the human resources director. If this employee has been, or is on, probation, defense counsel needs to know the reasons for it in order to avoid ambush.

Where Is All the Hostility Coming From?

Many attorneys feel as if they were hit by a Mack truck loaded with hostility and resentment after their initial meeting with a company witness. If this happens, make sure to consider whether the anger and hostility is rooted in another location when reflecting upon the witness's demeanor and statements. Is it possible that defense counsel reminds the witness of an ex-spouse, an abusive parent, a boss or a co-worker perceived to have been wrongfully promoted ahead of the witness? Like it or not, not every attorney-witness relationship is a winner. If you are having difficulty interacting with a witness, consider having another attorney of the opposite gender or style meet with them to see if the same type of adversity manifests at the next meeting. Just as marrying the love of your life may also mean gaining in-laws you detest, defending a product liability case may also result in interacting with company employees who just do not “click” with you. Such occasions may require you to set aside your ego in order to maximize the defense of your case.

Tears from Heaven

Without playing Monday morning psychologist, defense counsel must develop the ability to recognize that some witnesses need outside professional assistance. Individuals who are under significant stress for reasons unrelated to your case, such as a divorce or a death in the family, may not be able to participate meaningfully in their preparation or to give cogent testimony. Taking the time to get to know the witness personally, her family, successes and failures will provide a glimpse of the witness's understructure that may need repair by someone other than legal counsel. Some witnesses just need to know “it is okay” to suffer depression, anxiety or other conditions and that they do not demonstrate weakness or incompetence. Encouraging a witness to consider professional help may give her the freedom to pursue that avenue and address the complicated issues that may impede her participation in and, ultimately, the defense of your case.

Once Upon a Time …

Former company witnesses present unique challenges, particularly if they were terminated or left the company under hostile or untoward circumstances. While there are many legal issues that may relate to interviewing this witness (such as attorney-client privilege and the potential claim of witness tampering, which are outside the scope of this article), counsel is reminded that first and foremost, this witness should be viewed as a person. Even if you anticipate hostility, the civility you demonstrate during your interactions with this witness will enhance your working relationship and minimize the witness's need to strike out against the company. This witness will appreciate counsel who not only wants to discuss the facts of the case, but who cares about her as well. These considerations are crucial to minimize any unwelcome surprises that could ambush the defense of your case. Obviously each and every witness and case is unique, thereby requiring your discretion when utilizing these techniques. The utilization of these techniques, however, will greatly help you tailor an effective defense.

Kimberly D. Baker is a litigation attorney practicing at Williams, Kastner & Gibbs in Seattle, WA. She holds a nursing degree and handles product liability, employment and medical liability litigation.