One of the fastest ways to lose a case is to forget to round up your witnesses early in the case, to cultivate their testimony, collect their evidence, follow up on their leads, and to prepare them for trial. Too often, we hear horror stories about lawyers who ignore their own clients’ recommendations to contact witnesses. We hear unfortunate accounts of lawyers scrambling to contact witnesses for trial at the last moment – or worse yet, completely failing to do so.
When a case hinges on the quality of witness testimony, or on decisive questions that can be answered effectively by independent witnesses, the failure of an attorney to develop the case with solid witness evidence may constitute legal malpractice.
A good trial lawyer routinely:
- Asks his client for the names and contact information of all potential witnesses;
- Screens all witnesses for useful information, potential biases, and credibility, and asks the witnesses if they know of other potential witnesses;
- Asks all witnesses what documents or records they may have to support the claim or to rebut the opponent’s claim;
- Compares the testimony and evidence of each of the witnesses, and attempts to unify and coordinate the witness testimony to remove any inconsistency between witnesses;
- Prepares the witnesses well in advance of any trial date, deposition, arbitration or other proceeding in which they will be called to testify.
A negligent trial lawyer:
- Fails to contact witnesses, or contacts them so close to the time of trial that they are unavailable for trial (or they cannot be found).
- Rushes through the procedures with witnesses, leaving little time to allow witnesses to communicate with each other, and permitting little opportuning to reconcile and coordinate witness testimony in an organized trial plan.
- Fails to disclose witness names in pre-trial discovery documents, potentially facing motions to bar the witnesses from testifying at trial (because their names were never disclosed prior to trial during the pre-trial discovery process).
Nobody should be heading into a courtroom without ALL of the best evidence to support his or her claim. Witness testimony is critical to the process. When witness testimony is overlooked, there may be a claim against the lawyer for legal malpractice. If so, please contact us.