So far as practicable, you should try to provide the same sort of empathy and support to the witnesses who may be called in support of your client. They too feel vulnerable when they deal with lawyers. Who doesn’t? But witnesses feel more than usually threatened. Except for the fear of punishment that the accused alone may face, witnesses consider that they are very nearly in the same position as the accused. They are unfamiliar with and usually frightened of the trial process, so they are reluctant to be involved. They need to be made to feel that the lawyer has taken into account their interest as well as those of the accused. They must come to see that the lawyer representing the accused is competent to handle the trial and to present them before the court without causing them humiliation or terror.
To these witnesses, the lawyer should always speak of the accused respectfully even if the lawyer’s personal assessment of the accused or of the merits of her case is otherwise. Witnesses tend to reflect the same attitude towards the accused as that of the accused’s counsel. It is often beneficial to tell witnesses how their evidence fits into the defence evidence generally. Only in this way will they understand their significance to the process and outcome. They should also be advised to respect opposing counsel and to avoid evasive tactics. They should be courteous to all court personnel and respectful of the Justice system. They should also be admonished that they are not advocates, but facilitators, advancing a piece of the narrative.
The importance of the preparation of witnesses cannot be overstated. Most cases, in fact, turn on the performance of the witnesses. But there is no foolproof formula or method to prepare witnesses for trial. They come to us in all types and fashions, and many are, to say the least, a challenge. Some communicate easily and well, others only grudgingly and in monosyllabic grunts. Patience and preparation are all.
Witness preparation, difficult as it may be, is the first important step to changing the level of your success at trial. Sometimes the best way to learn how to do something is to consider or examine the opposite, that is, how not to do it. Let me give you an example.
In the mid-to late eighties, I had the privilege of representing over three hundred burlesque attendants. The sheer number of persons charged with these offences in my community, and throughout the province of Ontario, was part of a mighty effort by the police and prosecutors to “clean up” and destroy the burlesque industry in the province. The strategy of the prosecutorial authorities was to charge as many performers as possible and use the legal system to take them and the owners of the burlesque parlours down, because it was the owners who usually paid the performers’ legal fees. The intention, of course, was to demonstrate to the owners that the (legal) cost of the business was too high.
Wrong. The publicity, the “free advertising,” generated by the media’s disclosure of the charges stretched throughout the province and all the way to Michigan resulting in a massive influx of well-to-do American male patrons bearing U.S. currency, and more. Suddenly business was good, very good indeed.
In this climate, in this highly charged atmosphere, I had a visit from one of the burlesque dancers charged with the offences of nudity in a public place and indecent theatrical performance. My job was to prepare her for trial (Someone, after all, has to do this dirty work.).