29 Aug

How to prepare a witness to testify in legal proceedings

Posted in: Our Blog

One of the things that I spend a lot of time discussing with my clients prior to immigration hearings is the experience of being a witness in a legal proceeding.
What this means is that I often spend a significant amount of time with my clients explaining not just what they will testify to but how they will testify to it. This usually involves lengthy discussions of the function of a witness at a hearing and how they can be the most effective witness possible.

Credibility
The main objective of a witness any proceeding is to be credible. By this I mean that the witness has to be believed and have their evidence accepted at face value. There are a number of ways in which credibility can influence a decision maker. The first and most obvious is their physical demeanor as they offer evidence.
When people get nervous, they often take on a number of physical traits that may give the appearance of dishonesty despite the fact that they are being completely truthful in their testimony. Examples of this are:
  • Failing to make eye contact or speaking very softly;
  • Muttering, mumbling, vagueness, or;
  • Speaking very loudly and becoming defensive.
Although the things that people do when they become nervous are often difficult to change, it is usually enough to be aware of one’s nervous habits and through this awareness, one can address those habits and hopefully change them during the course of the testimony.
Spontaneity
Another component of the visual observations that a decision maker makes of a witness is the spontaneity with which they answer questions. Although many witnesses are asked questions about dates and events that may no longer be foremost in their minds, when they are describing an event that is important (especially when it is important to them) the expectation of most decision makers will be that a witness is able to discuss it with a degree of spontaneity and a natural flow to their recollections.
I often tell my clients that it is helpful when preparing to testify to watch courtroom dramas on TV. Not of reality TV judge type, but an acted courtroom drama in which witnesses provide evidence to lawyers and judges. I tell my clients not to watch the lawyers or judges or any other actors in these dramas but rather to focus intently on witnesses who are giving testimony in Court. This is because the witnesses in shows of this nature are almost always ‘perfect’ witnesses. This is because a TV show has a very limited amount of time to devote to testimony and if a witness on that show were to be realistic, they would be required to speak slowly, not answer questions directly, mutter, mumble, or talk into their chest. The show would run well over. Instead, every witness answers clearly, plainly and with a delivery in tone and body language that is consistent with somebody who is telling the truth.
Consistency
Another less subjective means of assessing credibility often employed by decision makers is to consider the consistency of the testimony that has been offered. This means that it is imperative for all witnesses to be very familiar with the documentary evidence before the Tribunal so they can be sure that their recollection of events does not contradict any of the material before the Tribunal and also that their answers are internally consistent as well as consistent with other witnesses against whom their credibility will be assessed.
This requires extensive and exhaustive preparation in order to become intimately familiar with the subject matter of the hearing. There isn’t really a short cut for this. As a lawyer, I attempt to prepare my clients by asking them every possible question relating to the relevant issues, but only a diligent and well prepared witness can truly be ready to bring clarity and consistency to all of his evidence.

Plausibility

Another component of a credibility assessment is something called plausibility. Plausibility means that the witness’ story has to make sense. If a client testifies in a clear, straightforward and consistent manner but tells a story that is illogical or highly unlikely, a good decision maker will confront them with this and explain to them that their account simply doesn’t seem plausible.
For this reason, during the course of my witness preparation, I frequently confront my clients with components of their case that at face value do not appear to make sense. As an immigration lawyer who deals with people from different counties and different cultures on daily basis, it is not uncommon that the impossibilities in people’s stories relate to a cultural understanding or practice with which I am not familiar and which immigration decision makers might feel is strange or illogical. For this reason, I often stress to my clients how important it is that their testimony must make sense to a person from Canadian society with all of the accompanying norms and expectations.
Immigration Canada as well as the Immigration and Refugee Board make significant and meaningful efforts to receive and consider evidence in a manner that is culturally sensitive. However, as a lawyer, I feel that it is important that people are able to offer their testimony in a way that is easily accessible to a decision maker who is not form that culture. This often involves a certain lack of sensitivity on my part, but in the service of better understanding and hopefully the ultimate success of a case.

Hearing room visits
One final exercise that I often do with clients when preparing for their testimony is I walk them the one block from my office to the court in order to show my witnesses an empty hearing room. I started this practice after many years of representing clients in hearings that lasted multiple days. Virtually without fail, my witnesses would perform better on the second day of the testimony than they had been on the first, even if the second day occurred months after the first. I surmised that the reason for this was that having already been in the hearing room and being familiar with its dimensions and atmosphere, the witnesses perform better, being more comfortable than they had been in the previous sitting when they entered the room for the first time.
In order to replicate this, I bring my client into empty hearing rooms, encourage them to sit down where they will be sitting to testify while I stand at the podium I will occupy during the course of my examination. I also explain to them that they have to be clearly heard across the room to get them comfortable with the idea of projecting their voice across the room to make themselves heard to the one person who matters, the decision maker. In almost every case, my witnesses have walked away form this brief field trip feeling more comfortable and more confident in the evidence that they would be expected to give and I am completely convinced that they are better witnesses as a result.
As any lawyer will tell you, some people simply do not make good witnesses. That is true. However, with careful and thorough preparation, it has been my experience that even somebody who might, by their nature a poor witness, can be made to testify and be believed.

 

Joel Sandaluk is a Partner at Mamann, Sandaluk, and Kingwell LLP and the leader of the Immigration Litigation Group.
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