Compliance &Ethics - Society of Corporate Compliance and Ethics

y Dan Small and Robert F. RoachPowerful witness preparation:The pure and simple truth»»The need to tell the truth does not lessen the need to prepare the witness to testify.»»If you make a mistake, stop and fix it. The jury will understand.»»Deal with the bad stuff up front. Being defensive or trying to cover it up will only make things worse.»»Witnesses should include positive aspects about themselves as part of telling the truth.»»Witnesses should concentrate on what they saw, heard, or did and avoid speculation.Compliance & Ethics Professional May/June 2012In this series of articles, lead author and seasoned trial attorneyDan Small sets forth ten, time-tested rules to assist you in thecritical task of preparing witnesses. Robert F. Roach assistedDan in this series by providing additional “in-house” perspectiveand commentary. The first installment of this series was publishedin our January/February issue.There is great wisdom in the quote,adopted from Mark Twain, “Always tellthe truth. It makes it easier to rememberwhat you said the first time.” Real witnesspreparation is an intensive and challengingprocess. However, it must begin and end withone fundamental principle: Always tell thetruth. The witness must be clear and comfortablethat at no time is the lawyer telling him/her what to say, other than to say the truth.The need to tell the truth, though, does notlessen the need to prepare. On the contrary,it only heightens it. To quote a very differentauthor, Oscar Wilde, “The pure and simpletruth is rarely pure and never simple.” Thegoal of good witness preparation is to get tothe truth and bring it out effectively in thisdifficult environment. Truth is often the firstcasualty of poor preparation.Rule 3: Tell the TruthNo witness takes an oath to “tell the truth.”That is a myth. The oath at the beginningof testimony is to “tell the Truth, the wholeTruth, and nothing but the Truth.” Like manythings in our normal lives, we tend to blurit all together into one image. Like manythings in the precise and artificial world ofbeing a witness, we need to examinethe entire statement and make surethat we understand and consider allthree parts.1. “The Truth”Witnesses should understand thatthis is not only a rule of law; it is a Smallrule of self-preservation. Lying, orstretching the truth, as a witness maynot only be a crime. It’s foolish.Witnesses should understand, tobe blunt about it, that they are not asgood at lying as they think they are.That’s because they are used to gettingaway with it relatively easily. Innormal conversations, certain kinds Roachof social “white lies” are generally acceptedor ignored. Even more serious lying is rarelydirectly challenged, and never with the kindof intensity and expertise you will experienceif you try it as a witness.The consequences of telling a lie are oftenworse than whatever it was the questionerwas asking about in the first place. It is what44 www.corporatecompliance.org +1 952 933 4977 or 888 277 4977