So you’re preparing for your trial testimony, and the discovery has been voluminous. Out of the mountain of documents that opposing counsel might wave at you, there are a handful that are most likely to be relevant to you. The documents and their underlying issues have been carefully curated and reviewed by your attorneys, so you feel prepared on what to expect. But what if they throw you a curve ball? Once the attorney from the other side is shoving something under your nose that you have not seen or prepared for, what do you do?

I think the message for the witness is this: Testimony is one of those situations where the phrase “expect the unexpected” is literally true. Yes, you should comprehensively prepare for everything you expect, and even for things that you think might come up. But there will likely be at least one or two things that you didn’t expect. This can be more of an issue at the deposition stage, where opposing counsel is casting about just to see what you might or might not know about or say, but the surprises can pop out during trial as well, particularly in a document-intensive case. In this post, I will share three messages that I will often give to witnesses during the preparation process on how to react to surprises, and how to be prepared for the topics that were not covered in the preparation sessions.

Take Comfort 

The first message is to take comfort in the fact that there was probably a good reason why we didn’t prepare for this particular document or issue. Maybe it is irrelevant, or maybe it is something for another witness. At the deposition stage, maybe it is something that would never be admissible at trial. The message for the witness is, if you were not specifically prepared for it, then chances are good that it isn’t that important. And, in any case, if any problems crop up, it is your lawyer’s job to fix them.

Take Your Time 

Even if you are momentarily taken off guard, try to rely on the habits you have been practicing in response to all of the other questions: Pause, think, then answer. Take your time. Carefully review any unfamiliar evidence that is placed in front of you. Don’t guess or assume, and don’t shoot from the hip. And if the reality is that you don’t know, then your answer is, “I don’t know.”

Take Your Momentum Back 

Instead of letting the unfamiliar question become a distraction, you need to move on. Your main messages are still your main messages, and whatever answer you give to the surprise question, your goal should be to reconnect to one of the main themes or talking points for your testimony that you developed during preparation. In other words, find a bridge back to more familiar territory.

The goal of good witness preparation is, of course, to minimize the chances of a surprise. But attorneys are crafty, and sometimes the goal is to try to damage a witness’s confidence and composure by coming up with something unfamiliar, even if it isn’t terribly relevant. So preparation can never eliminate the chance of surprise, and a prepared witness needs to be ready to respond with a cool head .

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