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The Art of Trial Witness Preparation

Benjamin Franklin was once quoted as saying, “By failing to prepare, you are preparing to fail.” This is especially true when applied to litigated trials. A trial is the culmination of every aspect of a default lawsuit, from pleadings to discovery to testimony, each stage of the litigation is important to the trial outcome. Who is the most important participant at the trial? Many people would opine that the judge or the attorneys have the most impact; however, the witness is usually the key to whether trial ends in success or failure.

In a mortgage default scenario, most of our trials are decided by a judge, not a jury. Many times, the only witness at the trial is the witness from the mortgage servicer. The witness testimony is imperative to lay the foundation for admitting evidence and proving the case. As such, witness preparation for a trial could be considered the most necessary and important step to ensure the case is properly presented. There are several steps a witness can take to be well prepared to give testimony.

Review the Pleadings

To have the best opportunity for success, the preparation for trial should begin by reviewing the case from the very beginning. It is important, given the amount of pre-complaint conditions and pleading standards required in a default case, that the witness be familiar with the grounds pled in the complaint. These generally include the default date, the standard of standing employed, and may also include statements regarding loan modifications or conditions precedent. The statements in the complaint frame the case, and it is very common that opposing parties utilize the complaint to organize their questions and determine their trial strategy. At nearly every deposition, opposing counsel will question the witnesses directly from the complaint, as an easy way to determine the witness’ level of knowledge of the case. As such, understanding the basic framework of the case, as set forth in the complaint, can organize the testimony and enhance the testimonial credibility.

After review of the complaint, it is important to understand the opposing parties’ position, and a review of the answer and defenses can be very helpful in determining what issues the witness may be required to testify. It should be noted that, by the time a witness is selected and trial is set, the attorney should have narrowed the arguments in the case to as few issues as possible. In reviewing the answer and related orders, it is important to confirm whether any defenses were stricken and whether summary judgment has been entered as to any of the issues. It should always be the attorney’s goal to have as few outstanding arguments at trial as possible in order to limit the material a witness needs to be prepared for testimony.

Motions to Strike and Summary Judgments regularly can reduce what would be a 10 affirmative defense answer to one or two specific arguments.

Review the Discovery

In addition to reviewing the pleadings, a review of the discovery is also highly recommended. Any answers given in response to discovery can limit the testimony available to a witness at trial. If an interrogatory gives an answer, or a response to a request for admissions admits or denies a fact, the witness testimony is limited by those responses and should not controvert those discovery responses. Likewise, a party is generally limited to utilizing the documents at trial that is provided in response to a Request for Production. If a response to a production request denies a specific document exist, or objects to the production, a strong argument can be made that the document cannot be used at the trial. Review of the discovery is needed in regards to deposition testimony. If a witness or other corporate representative from a party has given deposition testimony, it is imperative the witness be aware of and reviews the testimony to ensure consistency between the answers. Inconsistency between testimony at deposition and testimony at trial may be fatal to witness credibility, and even to the case in its entirety.

Hold an Attorney-Witness Meeting

The attorney and the witness are a team at trial, and the closer they can coordinate and work together, the higher the chance of a successful outcome. It is for this reason a trial preparation call or meeting between the witness and attorney is necessary, and advisably as early in the preparation process as possible. In order to have the most effective witness preparation meeting, the witness should review the pleadings and discovery, and the attorney should provide the witness with all expected exhibits and an outline or summary of the case.

An effective outline of the case should include information on the status of the case, information on the judge and opposing counsel, and, in addition, should include any specialized questions based on the issues the attorney feels may be necessary. While the law is supposed to be equitably applied, experience shows each judge and each opposing counsel are different, and the law can apply differently based upon the situation and the facts. This is another reason why the attorney-witness meeting is so important, as both the attorney and witness have varied experience, and can work together to determine what to expect at trial.

Determine What Documents/Information Is Missing

One of the most beneficial outcomes from the attorney-witness preparation meeting is identifying what documents will be the most useful in their testimony. Often, the witness has knowledge of the corporate documents and the ability to access them for trial testimony. The seasoned witness, in their court experience, has a better grasp of what corporate documents work for matters of proof, which can be very helpful to the attorney.

Unfortunately, if these documents were not made available prior to trial being set, it may lead to evidentiary challenges. This highlights why the initial attorney-witness preparation call should be held as early as possible. If new documents are discovered early in the preparation period, it is more likely these can be produced in a supplemental response to discovery and described in a pre-trial exhibit list. Given the court is required to weigh the prejudicial nature of an evidentiary challenge due to late production or new evidence, the earlier the production of the evidence, the better chance of overcoming the objection.

Hold Additional Attorney-Witness Meetings

While not always necessary, it is advisable in most cases to hold additional attorney-witness preparation meetings prior to the trial. At a minimum in a contested matter, a second preparation meeting should be held just prior to trial. As discussed above, the previous meeting should have occurred early in the trial preparation, and it could have been a month or more since that meeting. At this point in the preparation, it is more likely that all documents have been fully identified, a trial strategy has been developed, and each exhibit has an assigned purpose. Further, both the witness and attorney should be prepared to discuss final details and go over very specific questions based on the knowledge gained during preparation. Moreover, this final meeting usually cements whether settlement options should be considered based upon the facts and evidence of the case. Often, as a delay tactic, opposing counsel in a default case wait until the eve of trial to attempt to settle, and it is important for the witness to have appropriate authority to settle the case, when appropriate.


It is usually the goal of any party to avoid trial. Whether through settlement or pre-trial motion practice, resolving litigation without trial is an excellent way to avoid both cost and risk. However, if trial is required, preparation is of the utmost importance to ensure the attorney and witness can work in tandem as a team. The difference between failure and success in a trial generally comes down to a matter of one or two questions or exhibits. By preparing appropriately, the chances of success can be greatly increased.

“Preparation is the be-all of good trial work … improvisational brilliance is a satellite around the sun. Thorough preparation is that sun.”—Louis Nizer.

About Author: Jane E. Bond

Jane Bond is the Managing Partner of Florida Litigation at McCalla Raymer Leibert Pierce with over 30 years’ experience in all areas of mortgage servicing litigation. Bond serves on the advisory board of the Legal League 100 and enjoys speaking on panels, writing articles, and holding trainings to help educate those in our industry.

About Author: Curtis Wilson

Curtis Wilson is an experienced litigator at McCalla Raymer Leibert Pierce handling mortgage servicing trials throughout Florida in both Federal and State Courts. He is excellent in working with witnesses on trial preparation and enjoys being in the courtroom.

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