From IPE: Preparing Witnesses

Preparing Witnesses
guest author: Kevin M. Madden

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  1. Always Be Preparing. You should begin preparing your client for deposition or trial from the minute you first meet them. Testimony, like playing the piano, can be improved by practice. While you cannot anticipate every question that they will be asked you can, and should, anticipate most of them. There is no excuse (though it happens continuously) for a client to testify they have never read their own pleadings or discovery responses. Every client witness should be given a list of potential questions and be prepared to answer them. Practice depositions are vital. Make sure your preparation of the witness is far tougher than the actual deposition or trial testimony. Also, prepare your client for all the tricks that will be played upon them and make sure they know how to answer the questions asked and not wander far afield. Give them examples of leading questions. Then give them more.
  2. Dig, Dig, Dig: It is the rare case where a client provides all relevant information to their attorney. Either because they do not recall, or they are embarrassed, or they think it will hurt them, a client often withholds some vital information. It is important that they understand that attorneys and paralegals have fiduciary, confidential relationships with their clients and can, and should, be told everything. It always comes out. It is better that it does not come out for the first time at deposition or trial.


  1. What your client tells you the third party will testify about is rarely accurate. Before deciding to take the deposition, make sure you have thoroughly interviewed the witness.
  2. Always research the background of the third-party witness.
  3. Your conversations with the third-party witness are not privileged. Once again, do not say anything to the witness that you are not prepared to be repeated at trial.


  1. Control the Scope of the Opinion: You must always retain tight control over your experts. What does this mean? As soon as they are retained, you must ensure they understand exactly what you are seeking from them. Make them understand the scope of the opinions they are being asked to give and do not let them deviate from that scope. Under no circumstances should you ever give an expert an open-ended or broadly defined assignment. Failure to control your experts will create the risk that they will delve into areas where you do not want them to go and offer opinions that you do not want them to give, or do not expect. In your initial interview, ask the expert what he/she will need to do to prepare an opinion. If an accounting expert needs to spend 60 hours refreshing themselves on general accounting principles, then you do not want them as your expert. If the expert claims they need to review all the pleadings or discovery in the case to generate a report, then set them straight. They do not.
  2. Control the Information: A cardinal sin in dealing with experts is to give them more information than they need. Often, the legal professional will copy the entire file and send it to the expert so then can “familiarize” themselves with the case. This leads to sticker-shock when the expert bills the client (or the law firm) for reading pleadings or depositions that have nothing to do with his/her respective opinion. If you have an expert on future medical bills, it is not important that he review another expert’s report on lost future income. On the other hand, ensure that your expert is kept apprised of all developments or other testimony that might affect their opinion. You do not want a situation where an expert has based an opinion on erroneous or superseded information.  Also, never forget that communications between testifying experts and the legal professionals are not privileged. Make sure that there is no loose written communication and that you would have no concern with anything you write to or receive from an expert being published to the jury. If you do have such a concern, make a phone call.
  3. Control the Billing: Expert fees are often the single largest expense in a case. Also, unlike attorney’s fees, they are rarely recoverable at trial. Consequently, they are a sunk cost and the client must be protected. Insist that the expert provide an estimate of their anticipated fees. Further insist that the expert provide detailed, itemized invoices. Finally, make sure your expert is only billing you for issues directly related to their opinion.
  4. Control the Egos: By their very name, “experts” have achieved a certain standing in their fields. Often, then can be baited in deposition or trial and appear arrogant or stubborn. Often, they do not believe they need to be “prepared.” They do. Make sure your expert is prepared for any questions that might be asked of them and is not predisposed to opine on issue for which they were not retained.
Kevin M. Madden is the founding member of the Law Offices of Kevin Michael Madden, P.L.L.C., where he practices in the areas of civil trial practice, commercial litigation, business litigation, construction law, and employment law. He is admitted to practice in Texas and before the U.S. District Court, the Southern District of Texas, and the Eastern District Court of Texas. He is a member of the Houston Bar Association, the State Bar of Texas, the Texas Young Lawyers Association, the Texas Trial Lawyers Association, the Association of Trial Lawyers of America, and the Trial Lawyers for Public Justice. He earned his B.A. degree from the University of Colorado at Boulder, his B.S. degree from the University of Houston and his J.D. degree from the University of Houston Law Center.


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