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American Bar Association
Preparing Witnesses: A Practical Guide for Lawyers and Their Clients / Edition 3

Preparing Witnesses: A Practical Guide for Lawyers and Their Clients / Edition 3

by Daniel I. Small


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Product Details

ISBN-13: 9781604424782
Publisher: American Bar Association
Publication date: 04/16/2010
Edition description: 3rd Edition
Pages: 221
Product dimensions: 6.00(w) x 9.00(h) x 0.60(d)

About the Author

Daniel I. Small is a partner with the firm of Holland & Knight in Boston, MA. He practices in the area of litigation, focusing on witness preparation, government and internal investigations, white-collar criminal law and complex civil litigation. He resides in Boston, Massachusetts.

Table of Contents

About the Author ix

Acknowledgments xi

Introduction xiii

Foreword xvii

Chapter 1 A Collision of Environments 1

A Treacherous Environment 2

A Deceptive Environment 2

An Unnatural Environment 3

Chapter 2 Lawyer and Witness 5

A Special Relationship 5

Chapter 3 Preparing Ourselves 11

Goals 11

Methods 12

Tools 14

Chapter 4 Understanding the Audience 17

Humanize the Witness 18

Humanize the Party 20

Simplify the Language 20

Simplify the Message 20

Chapter 5 Why Preparation Matters 23

This Is Not a Conversation! 25

Why Preparation Matters 26

Seven Mistakes Lawyers Make 28

Three Mistakes Witnesses Make 33

Chapters 6 What Preparation Means 37

Seven Steps for Preparing the Witness 37

Chapter 7 Basic Principles of Being a Witness 43

Principle One: "Listen, Listen, Listen" 44

Principle Two: "Don't Try Too Hard" 47

Chapter 8 Rule 1: "Take Your Time" 51

"It's Hard to Do" 52

"It Will Look Bad" 53

"It Will Make It Take Longer" 54

Chapter 9 Rule 2: "Always Remember You Are Making a Record" 55

Time 56

Language 57

Chapter 10 Rule 3: "Tell the Truth" 63

1 "The Truth" 63

2 "The Whole Truth" 66

3 "Nothing but the Truth" 69

Chapter 11 Rule 4: "Be Relentlessly Polite" 71

Be Positive 72

Keep Your Cool 72

Do Your Job 72

"Don't Tease the Bear" 72

Leave It to the Lawyers 73

Don't Play Games 73

Don't Get Spooked by Details 74

Chapter 12 Rule 5: "Don't Answer a Question You Don't Understand" 77

Clarity 79

Comprehension 79

Comfort 81

Categories 83

Concepts 84

Choices 85

Wiggles and Squirms 85

Chapter 13 Rule 6: "If You Don't Remember, Say So" 89

"What's Important for OneIs Not Important for All" 90

"The Tougher the Issue, the Tougher the Memory" 91

"Memory Fades Quickly" 91

"Faded Memory Becomes Random and Anecdotal" 92

"Anecdotal Memory Becomes Reconstructed Memory" 93

Chapter 14 Rule 7: "Don't Guess" 95

1 Factual details 95

2 Inferences 97

3 Hypothetical 99

Chapter 15 Rule 8: "Do Not Volunteer" 101

Revelations 104

Requests 105

Chapter 16 Rule 9: "Be Careful with Documents and Prior Statements" 107

Issues 107

Process 108

Document Option Tree 112

Chapter 17 Rule 10: "Use Your Counsel" 119

Preparation 120

Breaks 120

Objections 121

The 10 Rules 123

Chapter 18 Making an Impact 125

Chapter 19 Adapting to the Situation 129

Interview vs. Testimony 129

Deposition/Grand Jury vs. Trial 131

Direct vs. Cross 134

Chapter 20 The Party Witness 139

Understanding 140

Personality 140

Emotions 41

Core Themes 141

Chapter 21 The Expert Witness 143

1 Know the Territory 144

2 Preparation, Preparation, Preparation 144

3 The Lawyer Is the Captain of His Ship 145

Chapter 22 The Physician as Witness 147

Key Challenges Doctors Face as Witnesses 148

Chapter 23 The Criminal Defendant 157

The Jury Wants to Hear It 159

The Defendant Wants to Say It 159

Chapter 24 The Ethics of Witness Preparation 161

What Can You Do? 163

Lawyer Conduct During a Deposition 164

Chapter 25 The Witness Bill of Rights 167

Chapter 26 Conclusion 171

Appendix A Sample Witness Outline 175

Appendix B Witness Preparation Summary Handout 177

Discussion 177

Introductions 178

Government Agency Testimony 181

Preparation Rules 188

Appendix C How Are Things in Russia? 195

Appendix D How Was Your Flight? 201

Appendix E How Are Things at the Hospital? 207

Appendix F Witness Bill of Rights 213

Index 215

What People are Saying About This

From the Publisher

"With the onslaught of government and private investigations and litigation, both executives and lawyers are finding themselves in uncharted territory. In this environment, good witness preparation has become essential, but all too rare. Dan Small's extraordinary book offers a way out: helping to teach witnesses and counsel how to communicate truthfully, effectively, and confidently. I strongly recommend it.”—Honorable William S. Sessions, Former Chief Judge, United States District Court, WD Texas; Former Director, Federal Bureau of Investigation

“Great insight into what makes an effective witness and how to talk to clients about it. This book should be on the shelf of every lawyer who may represent a witness in any investigation or proceeding.”—James M. Cole, Partner, Bryan, Cave, LLP, Former Special Counsel, U.S. House Ethics Committee

“Dan Small is a respected trial lawyer with an extraordinary understanding of the difficulties of being a witness. His book shows lawyers the right way to help clients through this complex and uncomfortable process. I recommend it to every practitioner.”—William Weld, McDermott, Will & Emery, Former Governor of Massachusetts, Former Chief of the Criminal Division, U.S. Department of Justice

“Every day in the news, we see what a wide range of people become witnesses, and the enormous risks to those who are not adequately prepared. This excellent book simplifies the task of convincing clients who are ‘too busy’ just how important preparation is, and how it should be done.”—Alan Dershowitz, Professor, Harvard Law School

“Irving Younger’s fourth commandment, like the motto of the Boy Scouts of America, is “Be Prepared.” Dan Small defines preparation like nobody else in the vast literature of the law of trial practice. His step-by-step guide is both a model of clarity and a paragon of completeness. Anyone who would presume to engage in the perilous endeavor of trying a case in court – an undertaking with more variables than the Saturn moon shot – would be foolhardy not to take advantage of his wise counsel and advice. His book is not an option, but a necessity for the experienced and novice trial advocate alike.”—Alex Sanders, President, College of Charleston, Former Chief Judge of the South Carolina Court of Appeals

“I have had the pleasure of working with Dan Small, first as a colleague in the Justice Department and later, while I was in private practice, as co-counsel in federal litigation. I have come to admire and respect Dan Small as an outstanding litigator. He understands that hard work and effective preparation are the keys to success in the courtroom, and is well-known for his remarkable ability to prepare witnesses.”—Rudolph W. Giuliani, Former Associate Attorney General, U.S., Department of Justice, and Former U.S. Attorney for the Southern District of New York

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