Many a winnable case has been lost when a party or witness fails to communicate with the
jury in a credible manner. In criminal cases, lawyers point to this as an argument for why the
client should not testify. However, many cases have been lost because jurors ignore the right not
to testify instruction and conclude that, if the defendant had been innocent, he or she would have
Since the jury is specifically instructed by the trial court that they are the sole judges of the credibility of the witnesses, considerable time should be spent preparing key witnesses to testify. In criminal cases, we are firmly convinced that a client should ALWAYS be ready, willing and able to testify even if the game plan calls for the witness to invoke his or her right not to testify. Thus, in every case, the pre-trial preparation of the client or key witnesses is critical. Simply giving the witness or client a list of proposed questions or some general ideas about the, do's and don'ts of testifying, is oftentimes not enough.
Some attorneys have a tendency to over-prepare a witness. Thus, the honest and truthful testimony of a witness is discounted by the fact finder as being contrived, rehearsed and incredulous. Again, experienced trial consultants are a valuable aid since their role is concentrated on the impact on the jury and not necessarily the substance of the testimony. We prefer to conduct witness preparation in 2 to 4-hour blocks of time. Our experience has shown that witnesses always benefit more from three separate 2-hour sessions than from a single 6-hour session. We charge $500 per hour9, $250 per hour for travel time, plus all out-of-pocket expenses.
9 This is the hourly rate of Robert B. Hirschhorn. Hourly rates are reduced when witness preparation is conducted by an Associate of CEB & Associates, Inc.