75. Prep for Success: Controlling Your Witness through Thorough Preparation, with Tom Innes and Mary DeFusco

According to Philadelphia trial lawyers Tom Innes and Mary DeFusco, preparing your witness for testimony is a bit like training a guide dog: the real work happens long before the leash comes off. In this episode, Tom and Mary talk about how to create control in ever-important prep sessions prior to testimony—and they share hands-on, practical tips that will help your witness give their testimony while staying cool and collected, on track, and under control.  
Topics
4:04  Why preparation is the first step
5:38  Deposing Dr. King on The Pitt
8:11  Your witness’s role  
10:30  Organization of testimony, explained
11:50  Under pressure
13:50  Cross prep
15:33  Practice pointers
19:13  Ethical considerations
23:02  Signoff questions

Quotes
“Practice having the witness speak to the jury both on direct and cross. Speak to the jury—even if all you can do is set up some empty chairs as a jury box.” Tom Innes

“It’s a really bad look in front of a jury when the witness answers every question promptly on direct but then very slowly on cross.” Mary DeFusco

Resources
Tom Innes (bio)
Mary DeFusco (bio)
Judge L. Felipe Restrepo (bio)
Building Trial Skills: Philadelphia (program)
Cross-Examination Math (podcast episode)

Transcript

Marsi Mangan 0:06

On today's episode of May the Record Reflect,

Tom Innes 0:12

No matter the witness you're calling, you need work to make sure the witness understands their place and their importance in the case. The witness's understanding of the case and the role that they play will help to, in fact, can I say it, control how they answer certain questions, especially in situations where they may not know the answer to a question or have forgotten what to say in response to your question or on cross-examination.

Mary DeFusco 0:36

We often talk about using head notes and chapter headings and talking about a good, cogent direct examination, but witnesses often get impatient and they want to blurt out the good facts far ahead of those good facts making any sense in the context of the case. Working with them on this is worth the time involved.

Marsi Mangan 1:01

That was Tom Innis and Mary DeFusco. And this is May the Record Reflect. Tom and Mary worked at the Defender Association of Philadelphia for over 30 years, with Tom heading up the prison advocacy practice and Mary having recently retired as Director of Attorney Training and Deputy Chief of the Municipal Court Unit. Combined, these two trial advocates have tried hundreds and hundreds of jury trials to verdict. But today, they join me on May the Record Reflect to discuss their suggestions for controlling your witness that go beyond the usual good listening skills and one fact-at-a-time line of questioning. According to Tom and Mary, it all comes down to how meticulously you prepare your witness. And they have some tips for you that you may not have heard before. Here's our interview. I am thrilled to welcome back Tom Innes from the Defender Association of Philadelphia. And today he has brought his former colleague Mary Defusca with him for what I know will be an instructive, engaging conversation about witness prep. Welcome, Mary, and welcome back, Tom.

Tom Innes 2:52

It's good to be here with you, Marsi.

Marsi Mangan 2:54

Thank you, Marsi. It's fun to be here. So every day in every courtroom, hearing room, deposition site, and adjudicatory venue, witnesses take the stand and swear or affirm to tell the truth. Lawyers prepare examinations in advance to ask them questions, but all too often the second part of that conversation and preparation does not occur. And that is how to control your own witness when you have, so to speak, unhooked the leash from the collar and put them on the witness stand. Trial lawyers know what they want to come out in testimony, whether it's direct examination or cross. And so their job is to make sure that they bring out to the fact finder what they are entitled to, and maybe even with a little luck, a little bit more. Tom, Mary, I know that with long careers at the Defender Association, you've both had ample opportunity to learn by doing what works and what does not work in controlling your own witness. And as with everything else important in life, it all starts with careful preparation, doesn't it, Tom?

Tom Innes 4:03

Yes, it does. Thanks, Marsi. We're all aware of witness control and cross-examination. The methods of control can be mechanical, short-leading questions, adding one fact at a time, staying away from what we call quibble words, and many other tools of the trade. On direct examination, litigators know that there is really only one method of exercising control: thorough, deliberate, and thoughtful preparation of the witness prior to the witness taking the stand. Once the witness takes the stand, there's not a lot that the rules of evidence and rules of court permit counsel to do in order to regain the control of a wayward testifier. Leading questions, redirecting the witness, and correcting your own witness, they may all be objected to, and your conduct might indeed be controlled by the court, ruled in proper, and the objection sustained.

Mary DeFusco 4:54

Tom, absolutely. Making sure in advance that the witness understands the few control methods you have in your arsenal is critical. It doesn't need to be said that good preparation involves sitting down with the witness and spending the time necessary to make sure that your witness is comfortable and that you're comfortable with what the witness will say as well as how the witness will say it. But equally, you must be comfortable with the readiness of the witness for cross-examination.

Tom Innes 5:23

For sure. Spending the required time with the witness is extremely important. We're not just talking about running through his or her testimony a couple times to make sure the witness says the bullet points of what you want and what you need. There's much more involved.

Marsi Mangan 5:38

Okay, so before we get into that, I just want to interject with a really quick question. Tom, I know that you watch The Pit.

Tom Innes 5:44

Yep.

Marsi Mangan 5:45

So the second season just started. And for those who also watch, you know that there's this young ER doctor, Dr. King, who has been named in a med mal claim against the hospital. And she's been, shall we say, invited to be deposed. And she is really, really nervous and she's so preoccupied with it. And every time that she mentions that she's got this deposition coming up, I am thinking to myself, so much of this agony she's going through could be relieved by a prep session with counsel. Why hasn't she been prepped yet? So my question to you then is what does the timeline for witness prep actually look like?

Tom Innes 6:22

Well, Marsi, let me let me first preface this by saying that my family is obsessed with the pit. My daughter-in-law is an emergency room doc in York, Pennsylvania. And um, after every show, we're sending notes back and forth about text back and forth about whether what's going on there is real. And she literally tells us that 95% of what's happening on the show is real. And you know, that's just not the medical part. It's also what I see the legal part. So here's what happens. Generally speaking, we need a the people who teach depositions, generally we teach people to do the final prep for a deposition one or two days before the deposition itself. That way it will be close enough to the depot for the witness to remember the prep, but still leave time at least a single night to think things over before the deposition itself and to ask any questions about the prep. That's the final stage. But the prep for testimony begins much earlier. It begins almost when the witness first comes in and you start talking to the witness about his or her testimony. But when it comes down to it, the final prep for the deposition is a day or two beforehand. And I can see the Dr. King is the doctor that we're talking about in the Men Mal case, and she's a young doctor, um, and she's completely frenetic and anxious about testifying. Um, and the realism of that is that she may well have been prepped, but uh she's never testified before. She's probably never been sued in a men mail case before, and she's a nervous wreck. And that's uh that's what we really see both at depositions and getting witnesses ready for trial. And that, again, is why preparation is so key to what we're doing, and what we're talking about today is so key to the process.

Marsi Mangan 8:11

So there is so much more to it than just creating a script and running through it with the witness, right? So let's talk about the methods of control that you have and how to explain them to your witness. Tom, would you like to kick us off?

Tom Innes 8:24

So, Marsi, no matter the witness you're calling, you need work to make sure the witness understands their place and their importance in the case. The witnesses' understanding of the case and the role that they play will help to, in fact, can I say it, control how they answer certain questions, especially in situations where they may not know the answer to a question or have forgotten what to say in response to your question or on cross-examination. As an aside, when the witness is a client, you might think you have an easier time, but you might well have an even heavier burden. Well, the client being integrally involved in the events leading up to the litigation, may think that she or he understands implicitly what the case is about and what testimony is necessary, but may not at all, quote unquote, get how things need to be said, what specific words need to be used, and how to most persuasively explain that to the fact finder, be it a judge or a jury.

Mary DeFusco 9:20

The client may get testy and may not be willing to spend the time that's necessary in prep. In fact, they might even accuse you, I've had this happen to me, of being finicky or nitpicky or overly concerned.

Tom Innes 9:32

Yeah, and so what that does is creates a little negative interaction between you and the client or the witness. So you want to make sure that that doesn't happen. You have to make sure to explain why certain wording is at least beneficial, if not required, beneficial if not required, to your side in your question or their answer. This again means taking the time to make certain they understand their role in the litigation.

Mary DeFusco 9:59

Tom, you're making an absolutely excellent point here. I was actually a witness once testifying before a jury myself, and it was on a medical malpractice case. I was very grateful that the attorney who prepped me uh took the time to explain to me the standard for medical malpractice and how it differed from ordinary negligence. Um, he didn't assume because I was an attorney that I knew that he took the time to do it, and it made all the difference in the way I saw my role in the case.

Marsi Mangan 10:30

So at the end of the day, preparation in all things and not just taking a case to trial is really all about being organized in advance. Mary, what role does good organization play in prepping someone to give testimony?

Mary DeFusco 10:45

I think it's super important to spend the time explaining what the organization of your direct testimony looks like. Explain how each fact has a place in your organization and when that fact will be elicited and how you're gonna do that. We often talk about using head notes and chapter headings and talking about a good, cogent direct examination. But witnesses often get impatient and they want to blurt out the good facts far ahead of those good facts making any sense in the context of the case. Working with them on this is worth the time involved.

Tom Innes 11:21

An example of that would be you call the witness at a witness stand and say, Can you introduce yourself to the jury? And the witness says, My name's Tom Innes, and I saw the car run that red light.

Mary DeFusco 11:32

And this is something that lawyers frequently don't think about during preparation. I actually learned this the hard way when a witness I was attempting to have accepted by the court as a first-time expert blurted out her opinion as an expert before I had even proffered her to the court as an expert.

Marsi Mangan 11:49

Talk about embarrassing, more so for me than for the witness. So I want to circle back to something that you mentioned a couple minutes ago, Tom, that sometimes a witness is forgetful, or understandably, they get really nervous and they seize up under the pressure of giving testimony.

Tom Innes 12:06

Yeah, I mean, most witnesses, except for those who testify a great deal, police officers and some experts, will be very anxious when they're called to testify. Let's look at Dr. King in the pit, right? Um, to the vast majority of people, the courtroom, the taking of the oath, the sitting next to a judge in a robe, with a jury sitting and looking at them, with an adversary waiting to trip them up, can turn them into nervous wrecks, no matter the time spent with them in press sessions, or no matter how much they seem like they will carry it off before they hit the witness stand. And what might a witness, especially a witness that wants to be helpful to your side, might what might that witness end up doing? They may guess the answer to a question, even on direct examination, and that guess may be wrong. One thing that is often not done in our experience in the witness prep sessions is to explain how, quote unquote, refreshing recollection works and how you well may be able to assist the forgetful witness. In the prep session, explain the importance of saying they don't recall rather than saying I guess or I'm not sure and what the magic in those words are. Follow that by explaining the next thing you will ask is something to the effect of, would it assist you in remembering if I were to show you uh X? And the X could be their statement, it could be a photograph, it could be anything. When they hear that, they should be instructed to say yes, that it would assist them, because then you're going to show the something that will assist their recollection and therefore their testimony. Prep them to understand that a wrong guess may well not be able to be repaired, and this is a tool that could assist them. During the prep session, practice this a few times so the witness understands the litany and the process.

Marsi Mangan 13:50

So the prep session again, can we talk about what we need to know about prepping witnesses for cross-examination? Of course.

Mary DeFusco 13:57

All good witness prep includes putting the witness through expected lines of cross-examination. Ideally, you'll have your witness be cross-examined by an attorney they don't know, and you'll make certain, it's your responsibility to make certain that that lawyer knows the facts of your case and knows them well. It's always suggested that whenever possible, the witness practices testimony in the actual courtroom, which is the side of the trial. That's not always possible, but try as much as possible to duplicate the scenario in the courtroom with the witness sitting away from counsel. So when you're prepping the witness for cross-examination, that includes preparing for questions that are commonly asked on cross-examination. For instance, if uh we're dealing with a non-party witness, opposing counsel may ask the witness what you told the witness to say when you spoke to them about their testimony. So it's a good practice to tell every witness to tell the truth, right? And also bring up the possibility of this question being asked on cross. The witness will then realize that the honest answer to that question is that you told them to tell the truth, right? Additionally, it's not uncommon for a witness to be asked on cross-examination if they're claiming that the opposing party's witness is lying. The witness should know how to answer that question honestly and also consistently with your theory of the case.

Marsi Mangan 15:28

So on that point, Tom, do you have any suggestions that you might share?

Tom Innes 15:32

Sure, I probably we both do. Uh let me start by saying during the practice session, try to stay enrolled. If there are issues with the testimony, take notes on it and come back after you've gone through the complete director cross. You want the witness to be able to handle the director cross from beginning to end and incorporate the changes or suggestions you've made into a complete and more realistic director cross. So, in other words, go through it once, talk to them about the changes that your suggestion they make, and then have them go through it again so they get to a complete examination. Practice with the witness to wait until the end of the question and take a pause before answering to both give them a chance to breathe and digest the full question they're being asked to answer. And they should do that both on direct examination and on cross.

Mary DeFusco 16:20

That's a great idea, Tom. I'll tell you why. This has the added benefit of ensuring that the witness's pace doesn't slow down on cross-examination. It's a really bad look in front of a jury if a witness answers every question promptly on direct, but then very slowly on cross. Slowing them down on direct means that they can take the time that they need on cross-examination. In addition, one of the tips I would give is during the practice cross, instruct the cross-examiner to throw in some irrelevant questions, maybe a curveball or two, including a loaded word. So you can explain that you'll assist the witness through objections to the curve balls, loaded questions, and that they should listen to the objections you make as many times. The objections may be instructive on how the witness should address the question.

Tom Innes 17:15

Fabulous, Mary. So another pointer is practice having the witness speak to the jury both on direct and cross. Speak to the jury, even if all you can do is set up some empty chairs as a jury box. As I said, do this both on direct and cross prep. We've all seen situations where the cross-examiner asks a question, and in answering the cross question, the witness looks to their counsel with those, how do I put it, puppy dog eyes? Very often just by instinct, looking for approval after a touchy question or a tough question to answer. Warn then, warn them that this makes them look unsure or coached. Counsel them that when you make an objection, look to you and listen to what you're saying. Otherwise, answer the question in speaking to the jury itself.

Mary DeFusco 18:04

So important, Tom. Jurors tend not to believe witnesses who don't, quote, look them in the eye, unquote. They don't necessarily realize how nerve-wracking testifying in front of 14 pairs of strange eyes can be. I've had it happen to me. I've testified in jury trials, even though I was trial counsel on more than one occasion, and it is very nerve-wracking. It is hard to look them in the eye. So that's something that you have to work over with prep. But don't consider that your witness is fully prepped unless they can answer a series of why, or even better, why not questions, right? The why and the why not questions generally ask the witnesses to explain their behavior, right? And also ask them to explain why they chose that behavior over what hindsight now reveals would be better behavior. A lot of people have a hard time articulating their reasoning after the fact. It's our job as attorneys to help the witness sort out their thought patterns in an articulate and persuasive way.

Marsi Mangan 19:13

The practice of law is one of the professions that is bound by rules of ethics. Could you touch on some of the ethical considerations that come into play when witnesses need to be prepped?

Tom Innes 19:25

Yeah, this is a really good point, Marsi. Thanks for bringing it up. There's always the issue, a bugaboo, of suggesting changes in wording or nuance in the witness's testimony. Some people call it coaching or sandpapering. I call it good wordsmithing and lawyering. There's absolutely nothing unethical in helping the witness form correct, appropriate, and probative answers as long as the ultimate testimony of the witness under oath is truthful. Often newer attorneys are hesitant to help form the witnesses' answers, thinking it is somehow a violation of the canons of ethics. In fact, one of our skills and even duties as attorneys is to be wordsmiths for our clients and their witnesses. And along those lines, you can, I suggest that the folks listening to this check out the restatement of the law of governing lawyers and the ABA standards on witnesses and witness prep and lawyers' conduct in that regard. And you'll find that wordsmithing is certainly, certainly allowed. Along those lines, our program affilly in March, March 17th to the 21st, spends a fun and fruitful hour of ethics credit on just this very topic, and that is the ethics of witness prep. And it's fun because we show movie clips and we talk about them, and it's a very interactive session.

Marsi Mangan 20:45

That's really fun. What else can you tell me?

Tom Innes 20:48

Well, sure, Marsi. Um, I have a great team that work that we work together. It's myself and Mary DeFusco and Third Circuit Judge Phil Restrapo, and we lead the entire program. Um and our program has, I will humbly say, received rave reviews. We have a great team, as I said, and some great features. For example, what I just talked about in terms of the ethics credit is one of two ethics credits built into the program. And in most jurisdictions, two years, two ethics credit is worth a whole year's worth of ethics requirement. Both of those ethics credits are interactive, not just talking heads. And you don't see that very often in CLEs about ethics. Also, on the final day of the program, all the participants pair up and try the case they're working on as a jury trial. And they try those cases in real courtrooms with jurors sitting in the jury box, and the participants will be able to watch and listen to the deliberations in their cases. It may be the only time in their career that they're able to try a case and then hear what the jurors have to say about the case, the cause of action, and their performance.

Mary DeFusco 21:56

Marsi, also at the Middle Atlantic Regional, we've collected a Over the years, a cadre of faculty who are from all walks of practice, from large firms and small and even solo practitioners, also from government offices and public interest offices, from academia and from the bench. Generally, I tell participants that they will perform before and be instructed by as many as 10 to 15 experienced faculty members, if not more.

Tom Innes 22:24

For example, what we have is, you know, Phil Restrepo, Judge Restreppo, he does a three, three and a half hour um lecture and fun interactive getting people involved on void here and jury selection. Um that alone is you know worth people considering coming to.

Marsi Mangan 22:44

Yeah, it's not every day that you get to work with a federal judge, and for that length of time, pretty rare opportunity.

Tom Innes 22:51

And he's there the whole week, and I can guarantee you that everybody will at least have one session in which he's uh listening, watching their performance and giving critique.

Marsi Mangan 23:02

Fantastic. Um, we're about to head into our sign-off questions. One of them has to do with TV, which is always my favorite. Do either of you have any final thoughts before we move on?

Tom Innes 23:14

Sure. I I'd say just putting together everything we've talked about. In summary, the control of your witness is won or lost in the conference room during the prep session, not in the courtroom. By investing the time to explain the process of testifying, not just the content, but the process and the content. You ensure that when the leash is unhooked, your witness stays on the path that you've built for them.

Marsi Mangan 23:38

All right. Thank you very much. Time for sign-offs. Mary, I'll start with you. If you could have been on the team for any trial, whether modern day or in the distant past, which trial would you choose? Which party would you have represented? And finally, what made you choose this particular trial?

Mary DeFusco 23:58

Absolutely, hands down, I would choose the trial of William Penn 1670. Um, and why the trial, and I would represent William Penn, needless to say. Although obviously he didn't need me, he came to Pennsylvania and founded it. So he was fine. But at the time, this was a capital offense. The reason I would choose it is because that trial, which very few people know about, is foundational to Anglo-American jurisprudence because what happened in that trial was the jury acquitted William Penn, and they had to do it over and over again because the judge would not accept their verdict. In fact, we have the notes of testimony, and the judge says in the notes, you impudent fellow, he says to the juror, um, I shall have the bailiff punch you in your nose. You will be without food, water, heat, and tobacco for two days, which is what the judge did to them. But the jurors held firm, and it was their case that went up to the Chief Justice, Sir John Vaughn, who then held that a jury could never be punished for their acquittal. Uh, that's what a jury is, according to Magna Carta. And that bedrock of Anglo-American jurisprudence was brought to this soil, and it's what we live and die under. That's why we have jury trials today. I would have loved to have even just been a fly on the wall for that trial.

Marsi Mangan 25:24

That's an important one. How about you, Tom?

Tom Innes 25:27

Well, first let me say that uh the people listening to this can hear how incredibly different the faculty is in the program, just the difference between Mary and I. Mary's so much more cerebral than I am. But so what I I have two parts of the answer. One is what would I like to witness? Clarence Darrow in 1924 represented Leopold and Loeb, who were trying to commit the perfect murder by murdering an adolescent. Uh Clarence Darrow represented them in the Capitol Murder case, and his closing argument was 12 hours, 12 hours. Um, and because anybody at Nita who was present in the courtroom would be like dying, right? Because we would just all say, What are you doing closing for 12 hours? I want I want to go back and I want to see and hear Clarence Darrow do that closing, how he kept the people's attention, and how, in fact, he saved the lives of both of his clients, Leopold and Lowe. And just as important, uh, that case involved one of the first times that mental infirmity was used as a defense and was successful, at least at the penalty phase. In terms of case, in terms of cases I'd like to be involved with, I was a founding member of a board member of the Pennsylvania Innocence Project, and I'd love to be on the defense team at the original trials of many of those folks the Innocence Project has obtained exoneration for in Pennsylvania. Many of those cases exhibit market ineffective assistance of counsel. And I can only hope that my participation on the trial defense team may possibly have saved some or many of those folks many years in custody by getting the not guilties they deserve the first time around.

Marsi Mangan 27:15

All right. Well, those were serious answers. So let's go back to TV. What have you been watching lately, Tom? We talked about the pit. Anything else?

Tom Innes 27:24

First of all, I would suggest watching. I'm a I love Billy Bob Thornton, and he's on TV in two shows right now. One of them is called Goliath, where he is a lawyer. So, you know, we have to watch that, and he's fabulous. Um, and the second show, which is presently on, Goliath was now five seasons a few years ago. The second show is Landman, where he plays an oil man in Texas. The third show, it's called Death by Lightning. It's a four, maybe it's like a four-episode series, and it's about it's scripted, it's not documentary, it's about the assassination of President James Garfield. Um, I especially love that show because of all the buildup to it and the fact that you know ahead of time who the assassin is. But uh honestly, I think they skip perhaps the most intriguing part of the of the whole interaction and the whole circumstances, which is John Gateau, who was the uh assassin of James Garfield, represented himself at trial, and we all know what that's about. Um, and in fact, did things like sing to the jury. He was clearly mentally unstable. This was way before Clarence Darrow, by the way. Um, he was mentally unstable. So people should check that out. I mean, there's a couple good books about it, and they could go down the rabbit hole, but I think they should watch all three of those series. Barry?

Mary DeFusco 28:48

Well, Tom, you know, you got me again. I like to watch old movies. I'm a big fan of the old Hitchcocks, you know, Vertigo, Violin for Murder, Rear Window. You know, a ton, tons and tons of wonderful, wonderful Hitchcock films. And you really, really, really realize when you see them why he became such a famous filmmaker, all the stuff he's got built in. Every time you see him, you see something new that you didn't see before.

Marsi Mangan 29:15

A fabulous discussion, friends. Thank you so much for spending this time with me here on the podcast.

Mary DeFusco 29:21

Thank you, Marsi. My pleasure.

Tom Innes 29:23

Thank you, Marsi. Glad to be here, as I said.

Marsi Mangan 29:27

If you like what you heard from Tom Innes and Mary DeFusco, and would like to enhance your skills under the direction of some of the best and brightest trial lawyers and judges in the country, you can do just that. Check the show notes for the registration link to the Philadelphia trial program. You will also find a link to Tom's previous podcast episode about something he calls cross-examination math. So I hope you'll check it out. Thank you so much for listening to this episode. We'll be back again next month with a new one. So until then, we wish you the very best of luck in your depositions, motions, and trials. Happy lawyering. May the Record Reflect is a Nita Studio 71 production. Nita, we are advocacy enhanced, mentorship reimagined. Welcome to the community.