FIRM 12: Client and witness interviews; how to conduct effective interviews

CLIENT

The definition of a client is shared in The Advocates Act as :

“... includes any person who, as a principal or on behalf of another, or as a trustee or

personal representative, or in any other capacity, has power, express or implied, to retain
or employ, and retains or employs, or is about to retain or employ an advocate and any
person who is or may be liable to pay to an advocate any costs.1”

WITNESS
The Black’s law dictionary for the definition of Witness to include:

“ …a person who gives evidence in a case before a court.Generally, this includes all people
who testify in any judicial proceeding including deponentsand affiants as well as
persons.2”

Who can Testify as a witness in Court?

The general rule is , any person can appear as a witness unless considered otherwise.
This is provided for in The Evidence Act section 125:

“ (1) All persons shall be competent to testify unless the court considers that they are
prevented from understanding the questions put to them, or from giving rational answers
to those questions, by tender years, extreme old age, disease (whether of body or mind) or
any similar cause.
(2) A mentally disordered person or a lunatic is not incompetent to testify unless he is
prevented by his condition from understanding the questions put to him and giving
rational answers to them.3”

Types of witness
They include:

i) Eye witness
“eye witness is a person who gives direct evidence on how an event took place and
therefore his/her testimony would have more probative value.4”

1
The Advocates Act (Cap 16) Section 2
2
Black's Law Dictionary (8th ed. 2004), Pg.4946
3
The Evidence Act (Cap) Section 125
4
In the Estate of Mogeni Osoro (Deceased) [2020] eKLR
ii) Character witness
This is a witness who testifies to the general character and reputation of the person on trial. 5
Character as used here as espoused by Section 58 of The Evidence Act :

“includes both reputation and disposition; but, except as provided in section 57, evidence
may be given only of general reputation and general disposition, and not of particular acts
by which reputation or disposition were shown.6

CONDUCTING AN EFFECTIVE INTERVIEW

A client interview is important for the following reasons:
1. Enables you to get acquainted with the client: Through conducting client
interviews, you are able to get to know your client and establish a rapport, which is
essential in making them comfortable and collaborative.
2. Enables you to understand a client’s interests: During interviews, clients reveal
their issues which allows you to establish the best way to provide them with legal aid
and how to ensure your services sufficiently meet their needs and expectations.
3. Provides for clarification of ambiguities: Interviews involve direct communication
that allows for clarification of any ambiguities which helps to prevent
misunderstandings.
4. Helps to establish areas of conflict: Through listening to the client, one is able to
establish if there are any areas of conflict that may hinder them from representing the
client. This occurs if the interests of the advocate and a third-party conflict with the
interests of their client which could be as a result of a pre-existing relationship.
5. Managing expectations: Through interviews, both parties can align their
expectations regarding outcomes and timelines hence reducing the risk of
dissatisfaction.
In order to ensure that one conducts an effective client interview, there are dos and don’ts that
one must comply with. These are:
DOs
 Prepare thoroughly beforehand by reviewing relevant documents. These may be
client documents that are necessary in the understanding of the facts or legal
documents that will help you come up with informed legal advice on the matter.
 Create a comfortable and private environment to facilitate open communication.
Greetings, offering refreshments and asking the client a few questions about
themselves that are unrelated to the case facilitate the creation of a comfortable
environment that helps the client to easily open up about their issue. A client will
equally feel at ease opening up to you in a private environment where their
conversation cannot be overheard especially if it is on a sensitive topic.

5
Black’s Law Dictionary
6
The Evidence Act (Cap) Section 58
  Actively listen to the client. This facilitates proper grasping of facts and avoids
confusion.
 Document responses. This prevents forgetting and missing of important details and
allows for future perusal of facts as opposed to relying solely on memory.
 Ask open-ended questions. Such questions allow the client to provide detailed
responses and enable you to accurately build a comprehensive understanding of the
situation.
 Establish a rapport with the client and build trust. This is by being respectful,
empathetic and non-judgmental.
 Remain neutral and objective. Let the client tell their story and offer your legal
opinion without bias.
 Clarify ambiguities or inconsistencies in the interviewee’s statement. This is
through asking follow-up questions which are often questions whose answers are
either yes or no.
 Have emotional intelligence. This enables you to discern and establish whether or
not a client is lying.
 Keep the interview professional. Ensure the conversation relates to the topic at hand
and that the language used is respectful and acceptable.
 Take control of the interview. Lead the discussion so as to ensure the client offers
information that is relevant to the case without digressing.
 Check out client’s body language. This enables you to know when a client is
anxious, uncomfortable or stressed and therefore helps you to take the necessary
measures to ensure they are comfortable. For instance, biting nails, fidgeting or
cracking knuckles could easily be a sign of anxiety while folded arms could be a sign
that a client is closed off or withholding information.
 Respect confidentiality. Do not share a client’s information or details with a third
party unless they give you consent to do so.
 Use bias free language. Address the client in a language that avoids stereotypes or
discriminatory attitudes towards individuals based on factors such as race, gender,
sexual orientation, disability or age.

DON’Ts
 Avoid interrupting the interviewee. Allow the client to speak without interjecting
and if there is need for clarification, ask the questions once they are done.
 Avoid making assumptions or judgments about their credibility or motives.
Showing a client that you doubt them creates an uncomfortable environment for them
and may lead them to withhold important information.
 Do not coerce the interviewee into providing certain information. Allow the client
to willingly provide information without using cunning tactics to force them to
provide information.
 Avoid asking overly specific or suggestive questions. Ask open-ended questions
that allow the client to offer detailed responses and refrain from questions that seem to
lean on a particular side or that require a client to give specific answers.
  Avoid promising outcomes you cannot deliver. Only promise that which is realistic
and be truthful when informing a client of the possible outcomes.
 Don’t be arrogant. Let the client make their statements without demeaning them or
being dismissive.
Avoid the use of jargon. When communicating with a client, use a language they understand
and avoid using legal terms that they may not be conversant with or technical English
terminologies that will create a language barrier.
 ADVOCATE - CLIENT INTERVIEWS
Client is as defined under section 2 of the Advocates Act and is prescribed to mean; any
person who, as a principal or on behalf of another, or as a trustee or personal representative,
or in any other capacity, has power, express or implied, to retain or employ, and retains or
employs, or is about to retain or employ an advocate and any person who is or may be liable
to pay to an advocate any costs.7
Client interviews are essentially meant to generate a flow of accurate information and reach a
mutually agreed upon decision.
Client interviews are divided into three stages. These stages include; the introduction stage,
the confirmation stage and the conclusion stage. These stages are discussed herein as follows:
1. Introductory Stage

This is the first stage in a client interview. It is the point at which the advocate takes the
initiative to establish an effective relationship with the client. This is with regard to building a
mutual understanding and most importantly creating trust between the client and the
advocate.
a) These are some of the steps to be taken during the preliminary stage:
i) The advocate makes contact with the client. This can be done through a phone call
or planning an initial meeting before scheduling the actual interview. The purpose
of this contact is to allow the advocate to first get a rough outline of what the case
involves. This is also important to allow the advocate to prepare for a substantive
interview.
ii) The advocate should endeavor to be forthright and approachable at this stage. This
affords confidence to the client and enables them to lay out their issues.
iii) Get to know the type of client you are dealing with to enable you handle them
better.
iv) Exude positivity in your attitude in the sense that you allude confidence that you
are going to handle the client’s issue in the best way possible without giving
promises of success.
v) As the advocate, arrange to let the client know the cost implications in the matter
and to determine that they are aware you will charge a certain fee for your time
and expertise.

7
Cap 16 Laws of Kenya.
vi) Get an initial opinion of the case in order to determine what you will need for the
client interview.
vii) Finally, at this point is to set up the client interview ensuring to select a time and
date that you will be uninterrupted.
b) Commencing the Interview

The way you receive your client says a kit to them about how you will handle their
matter.
i) The advocate should communicate prior to the client the venue, date and time of
the meeting. If it is via a conference call, the advocate should ensure they have a
stable internet connection and should have sent the link prior to the meeting. The
advocate should lead the client in the event that the meeting is physical.
ii) Take time as the advocate to make the client comfortable. Ensure that the venue is
appealing and warm; offer them refreshments to put them at ease. Engage the
client in amiable small talk which is to include greetings and checking on their
well-being. Ensure that you also have facilities for note taking and any other
relevant documents that you might need.
iii) Introduce yourself and state your qualifications. Seek to know how the client got
to know about you if it is a first time client.
iv) Seek to know the legal name of the client as per the National Identification Card
and how they would want to be referred to.
v) Make certain that you exchange contacts, addresses and any other relevant
personal details. Establish with the client that further communication shall be
made through the designated contact information.
vi) The issue of fee or retainer should be raised at this stage and let the client know
that this is the basis of a legally binding advocate-client relationship.
vii) After the binding relationship has been established now the advocate gathers
information from the client. During this time the advocates seeks to know how
they can assist the client through asking them to tell their story to get the facts. At
this point the advocate is expected to:
 Let the client tell their own story in their own words.
 Let the client know that their communication to you is protected by legal
privilege and that you shall maintain confidentiality in the matter.
  Let the client know that they are the only ones who can waive the right in
this privilege.
 Let the client know that the rules of confidentiality cover any information
that is divulged by the client in the client interview, and will extend to the
initial consultation, regardless of whether or not the client decides to
engage your services.
 Inform them that you need to hear all the information relating to their issue
– anything the client might consider inconsequential may provide crucial
legal leads.

When the client starts to tell their story, listen without interrupting.

FACT GATHERING(Getting to the core reason of the interview)

1. Listening

It is impossible to give good advice without having first listened to your client. Listening is
actually quite difficult to do effectively as it involves deep mental analysis of what you have
heard. Effective listening therefore involves not only hearing what is being said, but noting
the way in which things are said, and the body language displayed while it is being said.

You should try to evaluate the behavior of the client as they speak. Are they nervous,
apprehensive, fidgety or speaking too quickly? If so, try to calm them down. Are they
reluctant to open up and reveal information? If so, try to reassure them and encourage them to
share their thoughts. Are they spending too much time focusing on irrelevant points? If so, try
to steer them onto the important matters.

Your own behavior is also important. Think about what you are doing when the client is
speaking. Are you showing interest, or looking bored? Make sure you avoid looking down or
away, glancing at your watch, or doodling on your pad.

2. Jolt down notes

To be an effective interviewer you need to pay attention to your note-taking skills. Nothing is
more off-putting to a client than the sudden scribbling down of something they have just said.
On the other hand, one need to be able to recall accurately the details of the interview. We
suggest you develop the following techniques:
(a) Explain to your client at the beginning of the interview that you need to take notes in
order to recall the details of the case for further action.

(b) Take a ‘listen first’ approach; this means that you begin by actively listening to what your
client has to tell you. When you have checked your understanding of what they are telling
you at each stage of the interview, then you can note it down.

(c) At the end of the interview, use your notes to summarise the information; this will enable
you to check that your notes are an accurate representation of what took place.

(d) As soon as possible after the interview, write up your notes clearly and accurately. It is
important to do this because notes taken at the time may serve your short-term memory well,
but may cause you problems if you rely on them days or even weeks later.

(e) Keeping accurate notes is a very important part of your work. You will rely on them to
supply information on which further action may be based. If they are not accurate, you may
make mistakes or irritate your clients by having to go back to them to ask again for
information they have already given you.

3.Acquire information(Questioning)

You do this by inviting your client to tell you why they have come to see you and by listening
to what they say.

Letting the client talk: questioning techniques

Ideally, you want your client to tell you everything in their own words. Some clients are
perfectly capable of doing this with little prompting. Others need to be encouraged.
Developing your questioning technique gives you the best chance of getting at all the relevant
information.
The danger is that if a client is unforthcoming, it is tempting to close questions down, or use
leading questions, so that the interview tends more towards the interrogation than the
conversation. Similarly, an inexperienced interviewer may move towards interrogation in
order not to lose ‘control’ of the interview process.
How might this be avoided? The main focus of an interview is to get your client talking,
explaining things in their own words and expressing their feelings. There are a number of
techniques of questioning to help us in this.
● To encourage your client to speak:
(a) Use open questions. These are the ‘what, why, how, when, where’ questions. Such
questions are impossible to answer in a single word or with a shrug. The respondent has to
frame the answer in their own words. For example, ‘What happened? Why did you think
that?’ etc.

(b) Invite your client to talk. For example, ‘Tell me about . . .’, ‘I’d like to hear a little
more about . . .’, ‘Please go on’, etc.

(c) Use sympathetic body language such as a smile and a nod to encourage your client to go
on speaking.

(d) Summarise periodically to check your understanding and encourage your client
to correct any misunderstandings; ‘So the situation so far is that . . .’, ‘Have I got
that right?’
(e) Don’t be afraid of silence. Sometimes interviewees need time to think through an answer,
or to find the right words to explain themselves. The effective interviewer gives them that
time.

● Things that will discourage your client from talking are:

(a) Using closed questions. Closed questions are questions which require only ‘yes’ or ‘no’ or
‘don’t know’ answers, or require very specific information, such as: ‘You say you suffered an
accident at work?’; ‘Was this recently?’ Too many questions like these will only move the
interview forward uncertainty and may positively discourage your client from putting things
in their own words. Not only that, but the initiative passes to the questioner, who is tempted
to frame the situation in his or her own terms and construct an interpretation which differs
from that of the client.

(b) Using multiple choice questions. These are like closed questions in that they allow a very
restricted range of possible responses. These are questions like: ‘Did you report it to the
supervisor or the manager?’; ‘Are you after compensation or your job back or both?’ The
objections to this are the same as for closed questions.

(c) Using leading questions. These questions expect a particular answer, eg, ‘I don’t expect
you’ll want to go back to that job, will you?’ The problem with this type of question is that it
suggests to the client that you have formed an interpretation of events which may not be the
same as theirs, but which you are inviting them to agree with. They may well feel that the
situation is being taken from their control.
One should try to avoid leading questions. Closed and multiple choice questions have their
uses though. For example, if you want to confirm your understanding of an event or an issue,
they are perfectly permissible.

Different clients have different ways of presenting information. For example, a business
client might behave very differently to a ‘high street’ client.

Effective questioning obtains the information you need in order to provide the client with full
and informed advice, so that they can make the right decisions about the action they wish you
to initiate on their behalf.

4. Clarification

Once they have explained their situation, go over the summary of the client’s story in light of
the relevant facts to ascertain that you have identified the issues. It would be advisable to let
them go through your summary so as to let them identify any issues you would have missed
out. Seek clarification on anything that did not come out clearly. When seeking clarification,
avoid judgmental cross-examination! Confronting the client with the gaping holes in their
story will come at a later stage, when you are preparing the client for trial. Do not patronize
them; neither
should you be haughty.

At this stage, the advocate should make room for vagueness; memory lapses and lies. These
are the natural responses from clients who think that they must convince the advocate of their
saintliness. However, in the interests of getting accurate information, ensure that you engage
openly with your client and encourage them to be as forthcoming as possible. Ask close-
ended questions to narrow down the client’s story to pertinent issues, but do this without
condemning
them or seeming to be short.

Go through the list that you made in preparation for the interview from the benefit of the
preliminary meeting/contact and make sure that you have captured the basic information from
the client that you will need to advise on the case. Address the client on your assessment of
their case. At this point, you need to maintain eye contact.
ADVISING THE CLIENT
In legal practice, advising clients on the best course of action is a pivotal responsibility that
demands both expertise in the law and effective communication skills. As a lawyer, one is
tasked with guiding clients through complex legal landscapes, ensuring they understand their
rights, options, and potential consequences. This process of advising necessitates a structured
approach, characterized by a thorough analysis of the facts and the law, clear communication,
and ethical considerations.
After gathering the relevant information, one proceeds to a comprehensive analysis and
evaluation of the client's legal options after obtaining the pertinent data. Lawyers carefully
weigh the benefits and drawbacks of each potential strategy using their knowledge of the
codified law and case laws. They evaluate the practical difficulties and possible hazards
associated with various courses of action in addition to their legality and provide clients with
the necessary information to make well-informed decisions by offering a thorough analysis
that is founded on a clear comprehension of the law.
Having completed the analysis, the advisory stage entails giving the client clear, concise and
understandable recommendations. Translating complex legal ideas and terminologies into
easily understood language is crucial to making sure clients understand the full ramifications
of every choice.
Being open and honest with clients at this juncture is equally as essential, they should be
informed of the possible advantages and disadvantages of every option. In addition, lawyers
have to continue to be conscious of their ethical responsibilities, offering unbiased counsel
that puts the client's needs first.
When giving their legal opinion, lawyers can use different approaches for communication.
These can be either, a written or verbal legal opinion. A written legal opinion provides a
useful resource that the client can access whenever it is convenient for them. A written
approach guarantees that the advice is retained and available for future use in addition to
being understood. A verbal legal opinion suits instantaneous interaction and clarification.
In delivering recommendations, we have the flexibility to employ various communication
methods. While verbal communication allows for immediate interaction and clarification,
providing a written legal opinion offers a valuable reference for the client to consult at their
convenience. This multifaceted approach ensures that our advice is not only understood but
also retained and accessible for future reference.
If the issue at hand is more complicated or is not within the lawyer’s field of specialization, it
can be wise to bring in a different lawyer with more experience in the particular area. When
the need arises, the lawyer should maintain transparency and respect for the client by asking
permission before involving another professional. If the lawyer deems it fit for a reference, it
is their responsibility to offer suggestions for respectable practitioners so that the client's
transition is smooth and high-quality treatment is maintained.
To sum it up, advising clients on the best course of action is a multifaceted process that
requires diligence, expertise, and ethical integrity. By following a structured approach that
emphasizes thorough analysis, clear communication, and adherence to professional standards,
lawyers fulfil their duty to empower clients to navigate the complexities of the legal system
with confidence and clarity.

Payment for service

a. Give Payment Instructions
After calculating the monies owed by the client through the Advocates Renumeration Order 8,
communicating the costs to the client and coming to an agreement, it is essential to provide a
means through which they can pay for services rendered by the advocate. As such, having
multiple options is important in order to cater to your client’s needs. These may include:
i. Credit/Debit Card
ii. Mobile Money (M-Pesa, Airtel Money)
iii. Cheque
iv. Cash
Depending on the matter or the advocates evaluation of the client, a deposit may also be
necessary once the file is opened. Once payment has been made, generating a receipt is
essential in order to allow both parties to keep track of payment. Ensure that the client
receives one as well.

8
Advocates (Renumeration) (Amendment) Order, 2014.
 b. Ask client for identifying documents and any other relevant documents/ requirements
needed and witness information.
To add ease to the client-advocate relationship being formed and to cater to any future
dealings, it is necessary for the client to provide the advocate with a number of documents.
The type of documents may depend on the matter being handled but the essential ones
include:
i. A clear copy of their National Identity Card
ii. Multiple copies of their passport photo
It is also essential to obtain the following information from the client:
i. Contact details
ii. Residential and postal address

c. Open Client File/ What to include in client file

Before the conclusion of the meeting, a file including all the information and documents
obtained from the client must be opened. This allows the advocate or any future advocates
handling the matter to keep abreast of matters. Copies of any notes or minutes made during
meetings can be included in the client’s file. Further, all copies of any documents relating to
the client’s matter need to be included in their file. These include, but are not limited to,
pleadings, charges, transfers, affidavits, e-citizen receipts etc.

d. End the Interview/Meeting

At the end of the meeting, it is important to do a final review of matters discussed in order to
ensure that all the necessary information has been provided by the client. To ensure client
satisfaction, the advocate must ask the client if they have any further questions on matters
that have not been addressed during the meeting. If both are satisfied, the meeting can be
closed with a refreshment.
 ADVOCATE-WITNESS(ES) INTERVIEW
1. Preparation

Before the interview, the advocate should go through all the relevant documents and any
existing materials relating to the case to prepare for a substantive interview. The advocate
should prepare the interview location and ensure that it is appealing, warm and comfortable.
There should be minimal distractions to ensure that the interview is conducted effectively.
2. Commencing the Interview

The advocate establishes a rapport to initiate the interview with a warm and friendly greeting.
This puts the witness at ease and makes them comfortable around the advocate. The advocate
may shake hands with the witness(es) but should also be sensitive to cultural and religious
beliefs that do not allow handshakes. After settling down at the venue, the advocate
introduces himself or herself and also gives the witnesses a chance to introduce themselves.
At this point, the advocate may inquire on how the witness would like to be referred to, for
example, Dr, Prof among other titles. One may offer the witnesses refreshments as the
interview commences. Build the rapport by introducing yourself, explaining the purpose of
the interview, and emphasizing confidentiality.
Example: Good morning Mr. Wesley? How are you doing?
Please come in and have a seat.
Would you like something to drink?
3. Acquiring the Information

After offering refreshments, the advocate then explains their role to the witness(es) and asks
for their personal details. It is important to note down the personal details of the witness(es)
like their names, telephone number, Identity Card Number and their Physical Address. These
details will help in cases where there is need to further communicate with the witnesses or
when the courts need to order summons of issue. After jotting down the personal details, you
inform them that their information is held in confidentiality by virtue of the legal privilege
and only they can waive the privilege.
The advocate then asks the witness whether he or she knows why they are having the
interview.
Example: Do you know what brings you here today?
In most cases, especially civil cases, the witness will know the cause of the interview and will
answer the above question in the affirmative. In instances where the witness answers in the
negative, the advocate is obliged to inform the witness of the cause of the meeting being held.
The advocate must ensure that the witness understands the activities that will be carried out
during the interview and that they are obliged to answer questions honestly.
4. Active Listening

The advocate then inquires on the relation between the client and the witness or the accused
or the victim and the witnesses. This one form the foundational basis of the information
gathering process of the interview. The advocate then asks the witnesses about the issue at
hand through open-ended questions.
Example: Can you describe to me what you witnessed on that day is as much details as
possible?
The advocate then allows the witness to tell the story in their own words. Witnesses should
not be interrupted during this time unless it is absolutely necessary. The advocate may take
brief notes of the facts of the case if need be. An advocate should use gestures to show that
they are interested in what the witness is saying. It is important to remember that listening
also involves non-verbal communication especially the body language. Body language helps
you decipher whether what is being said is the truth or there are lies in the story. Listen
attentively to the witness story and responses, taking note of key points and any recurring
themes. Active listening involves letting the witness talk without any interruptions and
listening to their story with utmost keenness.
5. Clarification and Follow-up Questions

An advocate should go through the summary of the brief facts they have noted down in the
presence of the witness(es) to ensure that they have captured all the relevant information that
is needed and seek clarification for that which was not clear. The advocate may also request
for documents from the witness(es) that may be relevant to the case. The witnesses should
also be given time to ask questions and clear any doubts that they may have.
6. Conclusion

At the end of the interview, the advocate should inform the witness that they will be called
upon in a court of law to confirm their statement. They then go ahead and thank the witness
for their time and express gratitude for their cooperation and participation. They may also
offer an assurance that their testimony is valuable and will be taken into consideration. The
advocate also informs them that they will be contacted if any additional information is
required. The advocate the bids the witness farewell and escorts them out.
Preparing Witness For Trial
Introduction
The term witness preparation is used to refer to a meeting between a witness and the party
calling that witness, taking place before the witness's testimony, for the purpose of discussing
matters relating to the witness's testimony.
Witness preparation is permeated by ethical uncertainty. It presents one of the most difficult
ethical dilemmas regularly encountered by lawyers. Witness preparation poses serious
difficulties for litigators trying to steer an appropriate course between their duties to their
clients and their duties to the tribunal and to the judicial system as a whole. As such, it is
important to strike a balance between witness preparation and witness coaching. Witness
coaching refers to the process of improperly trying to influence a witness during legal
proceedings. It involves telling a witness what to say or how to answer questions, often with
the intention of favoring one side in the case Rule 8 of the Law Society of Kenya Code of
Conduct and Ethics for Advocates requires an advocate not to coach or permit the coaching
of any witness in the evidence s/he will give before any Court, Tribunal or arbitrator; call to
give evidence before any Court, Tribunal or arbitrator any witness whom s/he knows to have
been coached in evidence without first informing the Court, Tribunal or arbitrator of the full
circumstances.

How To Prepare Witnesses For Trial

Preparing witnesses for trial is one of the key steps to take to ensure the success of a case.
The witnesses are the human face of your case. The judge and the opposing counsel will be
listening to and watching the witnesses closely, and weighing their credibility. Many
witnesses are very nervous about testifying, and they may be asked to testify about details of
events that occurred years earlier. Adding to the challenge is the fact that a trial proceeding is
notoriously unpredictable.
Strategies for getting your witnesses truly ready to present your side of the story in
Court
1. Get Ready Early (But Not Too Early).
After the Court issues a trial date, reach out to the witnesses that you will call at trial.
Let them know when and where the trial will take place, whether to expect a subpoena
(this a formal written order that requires a person to appear before a court or
other legal proceedings) and also providing them with the time as to when you will
 meet them to discuss on the same. Exchange contact information and arrange to send
them a copy of their deposition transcript (if any) to refresh their memory about the
case. But be wary of scheduling your witness preparation sessions too early, since you
want the session to be fresh in the witness’ memory when she is called to testify.
2. Establish trust and Rapport (Should be Done in the First Meet Up)
The advocate should build a rapport with the witness to make them feel comfortable
and confident in sharing their testimony. This should be done at the very first time the
advocates meet with the witness, doing this creates a friendly atmosphere with the
witness hence the witness will feel free to disclose the relevant facts. This involves
explaining the process, discussing any concerns the witness may have assured
confidentiality.
3. Review the Case
The Advocate should thoroughly review the case with the witness, including relevant
documents, evidence and legal arguments. This helps the witness understand the
context of their testimony and how the documents are related to the case at time that
the documents are supposed to be produced before the Court to be adduced as
evidence and how it fits into the overall case strategy.
4. Explaining the Witness Role
Briefly clarify to the witness their roles in the trial and what is expected of them.
Emphasize the importance of honesty and how it saves them from being in contempt
of the Court, clarity and staying focused during questioning this is to avoid confusion
and also not giving room to the opposing counsel to identify the loopholes due to lack
of focus.
5. Prepare Outlines, Not Scripts.
Before you meet with your witness to prepare, it is essential to have an outline of
what you expect to ask in direct examination I.e tell this Court your name, what do
you do for a living, how do you know the parties involved in this case the key points
you need to elicit from the witness, and which exhibits you will enter through that
witness. You should also have an outline of what you expect opposing counsel to ask
this will help the witness to be familiar with some of the questions that the opposing
counsel might ask in order not to panic during the cross-examination by the opposing
counsel. The operative word is “outline.” Do not get stuck in a rigid question-and-
answer script.
 At trial, it is important to really listen to the witness’ answer and to adapt your
questions in real time. You may need to work around a court ruling on an objection or
motion. You may want to strike whole sections of the questioning if you feel that
other witnesses have covered the material. Having a general outline allows you to
keep track of what you need to accomplish with a witness without feeling tied to an
inflexible script.
6. Enlist Witnesses in Shaping the Larger Narrative.
While a witness will testify to a piece of the overall facts, actively enlist the witness in
shaping the larger narrative that you will present to the Court. For example, you might
read your draft opening statement to the witness, to give them a sense of the case
themes and provide them with an opportunity to correct or fine-tune any points. Not
only does this step help the witness see how her testimony fits into the larger case
themes, but she may raise questions or identify issues you had not considered.
7. Practice Direct Examination.
The process of testifying in court is foreign to most witnesses, and positively
terrifying for some. Practicing direct examination is critical to a polished presentation.
The goal is to make the witness comfortable with the give and take of direct
examination and the topics that you expect to cover in your examination. This practice
can eliminate a lot of fears and get the witness on solid footing.
8. But Do Not Practice Too Much.
The goal of preparation is not to have the witness memorize a specific set of questions
and answers. Rather, the witness needs to testify truthfully, in her own words, from
her own memory, in a way that is organic and authentic to her in the moment. Too
many preparation sessions can make even the most earnest witness sound overly
rehearsed and disingenuous.
9. Practice a Realistically Unpleasant Cross-Examination.
Being subjected to cross-examination is a withering experience for any witness, no
matter how sophisticated or thick-skinned. It is crucial to practice so that the witness
gets a real feel for what the process is like. Have someone on your team — preferably
someone other than the person who will handle the direct — role-play the cross-
examiner. Based on what you know from watching opposing counsel in previous
trials or depositions, adopt the cross-examiner’s courtroom style. If you expect the
cross-examiner to yell, get in the witness’ face or use scathing sarcasm, do that in the
practice.
 A witness who is not ready for the realities of cross-examination may react badly at
trial. Practice how the witness can assert herself when opposing counsel is demanding
a yes-or-no answer to a question that simply cannot be answered as “yes” or “no.”
Practice how the witness can correct any wrong assumptions by the cross-examiner.
Prepare the witness for opposing counsel’s trial theories. The witness needs to know
the topics that opposing counsel will cover, the points she will try to score and the
deposition testimony she will seize on to minimize surprises at trial.
10. Listen to What Will Make the Witness Comfortable.
Ask witnesses if there is anything at all that they are worried about, and you may be
surprised what you hear. You may learn about substantive issues that need to be
vetted before trial. A witness may be worried about how to explain a particular action
she took, or be concerned about a document; once you know that, you can spend time
working through the issues. Sometimes, the aspect of trial that scares the witness the
most has nothing to do with the substance of her testimony. A witness must be
comfortable to be successful.
11. Help a Witness Overcome a Poor Presentation.
When a witness performs poorly in the preparation, take a deep breath and consider
these tried-and-true strategies. First, schedule additional practice. Some witnesses just
need to feel more comfortable with the process. For example, a witness who defaults
into knee-jerk agreement with opposing counsel on cross-examination may need
practice asserting herself. A witness who struggles to remember the timeline of events
may need extra time to review the exhibits. If the issue is body language, such as
fidgeting or lack of eye contact, consider videotaping the witness’ practice testimony
and playing it back, so that she can see the issue and correct the problem. If the
witness is significant and your budget allows, consider working with a presentation-
skills expert who can provide additional coaching in this area. If the witness is still a
problem after taking these steps, you may consider cutting back her testimony to the
bare minimum.
12. Prepare for the Optics.
Any direction, a witness unaccustomed to business attire may appear at trial in
sweatpants, and a corporate executive may come in a Gucci suit. Neither is the look
you want. Tell witnesses who are not used to corporate attire to wear what they would
wear to church. Tell corporate executives to leave the designer suits and handbags at
 home, and wear understated clothes that will not intimidate a jury. The best look is
conservative, professional and accessible.
13. Keep the Lines of Communication Open.
Check in with your witnesses often in the weeks before trial. They will appreciate
periodic updates on often-changing trial schedules, and you will benefit from staying
abreast of their scheduling issues that could impact the trial, such as business travel,
vacation plans or medical appointments. But staying in touch can have substantive
benefits as well. For example, the witness may alert you to new facts that impact the
trial, may have received a call from opposing counsel, or may have heard about who
is planning to testify for the opposing party. Solid preparation will put everyone at
ease and ensure that the Court really hears your client’s side of the story from the
witnesses.