Preparation of the Lay Witness for the e-Arena
by Jack Seward
New York
What do you do when two attorneys have already laid down the foundation in the article “The Pitfalls of Preparing a Lay Witness for Trial” and e-discovery is involved? Acknowledge, as a nonattorney, that the article is excellent, and then explain as best you can how today’s technology creates an e-arena that can take down the best of them.
The authors of the article, Bruce White and William Medford (ABI Journal, June 2004, Vol. XXIII, No. 5 at 22), succinctly described the process of preparing a lay witness for trial: (a) “Know What Witnesses You Need”; (b) “Know Why You Need the Particular Witness”; (c) “Know the Witness”; (d) ”Know the Audience;” (e) “Woodshed Your Witness” and (f) “Know the Rules of Evidence.” Perhaps, before electronic evidence, the only thing left to do was to pray that the lay witness was adequately educated in the preparation process for testifying.
However, it seems that lay witnesses are being used less and less and replaced with the hired guns that cannot speak to the truth of the facts or authenticate the e-documents. When using hired guns becomes too expensive, and the case languishes for a time, the judge may order ADR. Assuming that FRCP 11 is not an issue, and facts do exist to support the case, then the preparation of the lay witness, as White and Medford suggest, along with using some proven technology to assist preparing the lay witness, is the best answer.
Hitting the floor running in the e-discovery world is perhaps not what bankruptcy attorneys and the court had in mind for litigation and settling cases. Often, the fall-back position (ADR) may be available, and this is admittedly easier than understanding the e-arena.
Believe in the Three Rules of e-Nature: The Electronic Evidence Does Exist, and That’s the First, Second and Third Rule.
Regardless of what we like to hear, the world of e-discovery and related court decisions are changing the litigation landscape with practically every case. And to those that may disagree, at least the clients and attorneys involved have perhaps changed their thinking about e-discovery. One thing is for sure: The litany of e-discovery cases dictates that this is not some freak out from the ‘60s. Rather, eDiscovery will be used extensively by bankruptcy courts after the new proposed FRCP is approved by the Supreme Court and Congress and becomes law on Dec. 1, 2006.
Take one step into the future today, and use the best technology available for preparing the lay witness. The software solution, DepPrep© by attorney David A. Hirsch and CaseSoft, www.casesoft.com, is complete and simple to use. Using this visual presentation software (Macromedia® Flash®), designed by an attorney for the lay witness, it immediately calms the witness, and that’s done in only the first four screens.
Here is a suggestion: sit the next lay witness down using the 30-day free trial of DepPrep© from CaseSoft, go back into your office and allow the lay witness to prepare him or herself and become comfortable with the process. They can do it, and what does this cost? Less than the price of two rolls of stamps. Indeed, after you explore the 90+ screens of “DepPrep,”© reality should dictate that things are different and the necessity to embrace technology has never been greater. Let me make this clear: DepPrep© is not an e-discovery tool to prepare the lay witness, but if the lay witness is not comfortable with facing “hard-copy originals,” imagine the disaster facing the client when electronic information is integral to the case.
Believe it or not, electronic information is integral in practically every case in bankruptcy, and the use of e-mail, instant messaging and electronic books and records and related financial information will forever change how bankruptcy litigation is conducted. After more than a year of experience with DepPrep© in commercial litigation and watching attorneys use this program to prepare the lay witness, I’m well along with creating the additional screens for what is necessary in e-discovery cases. Be ready for another important surprise during the testimony, because when the lay witness is self-prepared, the results will not be so unfortunate to your client “if opposing counsel asks the witness if anyone influenced their testimony, or otherwise told them what to say.” See White and Medford.
Discovering electronic evidence does not make it admissible, and the “hired guns” will not necessarily get it into the record of an adversary proceeding under the FRE that relates to electronic evidence. Without that lay witness being comfortable and understanding how to approach questions, listening, dealing with what they don’t know, demeanor, attorney tactics and credibility, how are they going to be able to answer the very tough questions related to electronic evidence? That digital evidence may never see the light of day if your client and lay witnesses are not prepared for forces of the e-rules of nature that are just ahead and waiting to take place.
Technology is being used in courtrooms, and it’s time bankruptcy attorneys take advantage of DepPrep© by CaseSoft www.casesoft.com and avoid “The Pitfalls of Preparing a Lay Witness for Trial.”