In my previous article on witness preparation, there was a glaring typographical error that I thought that I caught. The mistake was that the article indicated the agency lost its arbitration case. In fact, the agency prevailed in its arbitration case that occurred just before the grievant’s civil rights complaint hearing. Sadly, this victory never got into the civil rights hearing because the agency’s key witness was not prepared sufficiently to ensure that fact was introduced. In my opinion, this omission was critical and perhaps a contributor as to why the agency lost this phase of the grievant’s complaint over a very similar set of circumstances.
When I prepared for my first arbitration case I was scared to death. It is very natural for an advocate to write out the questions for direct examination.
While this is excellent preparation, it is often best to have a combination of outline and script. Once you get into the hearing, the direction and the complexion of the hearing can change with the testimony.
Outline your entire case and script out the critical questions which go to the heart and theory of your case. It is the job of your witnesses to get key pieces of evidence into the hearing record. By role playing with your key witnesses, not only are you helping them, but they too are helping you to prepare. This way you have the flexibility to raise other questions and to ensure that every area of your inquiry is covered, and entered into the record.
Remember, as the advocate you are telling a story to the arbitrator. Arbitrators are very familiar with private sector grievances, they are less familiar with federal sector laws, rules and regulations. That is your job to educate them on what they need to know to render a fair and just decision, but also a decision that you can lead them to through your witnesses.
Your outline also shows you your sequence of witnesses. Some witness testimony is foundation for other witness testimony. Each witness is there to build upon his/her predecessor, and to corroborate their testimony and to lay the foundation for testimony of events that happened later.
One critical point is not to let the arbitrator assume control of your case by asking questions for information and clarity. In this regard, the arbitrator is now constructing his/her own version of management’s case.
Chronology is not the only basis for calling witnesses. As the advocate, you may decide to call your witnesses based upon your topical organization of the facts that you want to get into the record. This is the theory of your case, and it is your job to make the arbitrator understand your case. To achieve this, the advance role playing with your key management witnesses will go a long way for you to determine your batting order.
Your case is not built on quantity. Arbitrators privately express that a string of witnesses all attesting to the same thing is not only annoying, but a waste of time. You risk losing the arbitrator’s interest and credibility in your case, but it also may raise their ire towards your presentation. Once you have prepared your witnesses sufficiently enough to get key facts into the record, then move on. This can only be accomplished by advanced preparation and role playing.
Here are some basic tips to cover with your witnesses before a hearing or during the hearing:
- Speak in a confident voice to be heard.
- Always speak the truth no matter what.
- Do not be timid or tentative. This may appear to be less than credible. Do not answer with “I think”. That conveys an impression as opposed to assuredness.
- Make sure you understand the question before you answer, and never be afraid to ask for clarification. If you do not know the answer, do not be afraid to say so as opposed to winging it. Winging it can cost you on a cross examination to the loss of credibility.
- Disclose any soft spots in your case to prevent your opposition from exploiting them on cross examination.
- Present the facts as you know them in a manner that will put your case in a positive light.
- Do not try to dazzle the arbitrator with big words. Use a positive vernacular that you would use daily under any circumstance.
- If an advocate objects, wait until the arbitrator renders a ruling before going on.
- Listen to the objection carefully because it may be very instructive in guiding you how to answer.
- Be serious, but always show respect for the arbitrator and the other side. It is not wise to show contempt for the other’s case or point of view.
- Being a witness is not a time to demonstrate your cleverness or how witty you can be.
- Do not take documents to the witness stand, that is the job of your advocate to introduce.
- Keep in mind that in federal arbitration your job as a witness is not only to corroborate the facts, but to educate the arbitrator on federal laws, rules and regulations to the best of your knowledge.
- If your witness misspeaks or rambles, it is the advocates responsibility to correct the record with follow-up questions.
It is always advantageous to have another there listening, taking notes, and someone who can slip you a note if he/she feels a salient point was missed. In my first arbitration case, we removed a person for unsatisfactory performance. One of her critical elements was records management that was in her position description and duties. In response to a question I asked on the agency’s management information system, she responded that she did not understand it, nor did she consider it important. My colleague slipped me a note: “Isn’t that unsatisfactory records management?” I followed up with that question, and it later appeared in the arbitrator’s award sustaining the removal. His sense of timing by slipping me the could not have been better.
Preparing witnesses for a hearing is an exercise in communication skills. They are an actor in your play, and they must learn their lines. They too are generally very familiar with the facts, and it is a time for everyone to get it straight.
A common technique in preparation is to give your witnesses a list of the questions you will ask or they may be asked by the other side. It is good practice for the witness to answer these questions in writing to you. This document can be used at the hearing. If a witness strays from the script, it is perfectly acceptable to introduce the document and ask the witness whether they prepared that document and does it refresh their memory. While this may show some weakness in their credibility, it is a way for the advocate to salvage testimony that may be harmful if not corrected.
Testifying at a hearing is never comfortable, and generally takes any normal person out of their comfort zone. The key to good preparation is to help them to be more at ease with the process, so that their behavior on the witness stand will come across as forthright, positive and quite normal.
Seasoned arbitrators look for clues to determine credibility. If your witness cannot give that Oscar winning performance, or cannot bring forward the crucial facts and evidence, then everyone must ask and answer a very serious question – is this the person I want on the witness stand and how crucial are they to our success?
It is never acceptable for a person to say, “I do not have time to participate in the case preparation.” Witness preparation is like the old FRAM oil filter TV commercial; “You can pay me now, or you can pay me later.” The later is a lost case with the possibility of reinstatement, back pay, and a loss of confidence in management’s ability to do the right thing.