It’s Not Tampering, It’s Story-Telling, Attorneys Say at Franchise Forum
Panelists used the infamous “You can’t handle the truth” clip from actor Jack Nicholson in “A Few Good Men” as an example of how NOT to prepare a witness for deposition or trial, at the American Bar Association Forum on Franchising last week.
“So is this the witness tampering class?” joked the attorney (at least I think he was joking) walking into a panel on “effective witness preparation in a franchise case” at last week’s American Bar Association Forum on Franchising in Denver.
“People who litigate and try cases, you realize that stories still get told through people and those people are witnesses. And witness preparation is a hugely important thing,” said Ron Coleman Jr. of Parker Hudson Rainer & Dobbs, one of two presenters.
“We’ve all seen witnesses who knocked it out of the park. And then unfortunately you’ve seen witnesses who’ve done not so great and witnesses who caved or imploded on the stand,” he said.
There’s a tension between appropriately preparing vs. improperly altering or influencing testimony, Coleman said. “A lawyer’s duty is: to extract the facts from the witness, not pour them in; to learn what the witness knows, not to teach him what he ought to know.”
One topic lawyers often discuss is whether it’s ethical to assist witnesses with word choice. Alejandro Brito, with Zarco Einhorn Salkowski & Brito, believes it’s A-OK. "That’s a conversation I have with my franchisee clients, which typically come to this litigation with their first time in the process. One thing I say is, there’s more than one way to say the same thing. I think that’s an effective way to present it to a non-litigious client,” so the client doesn’t think it’s tampering but rather helping to tell a persuasive story.
Brito shared his tips on preparing a franchisee witness:
1. Personalize each case beyond an investment. “Channel the emotional aspects of the case through the witness’ testimony.” This is their livelihood, there’s an emotional component to that, there’s family involved.
2. Establish the franchisee’s purpose and intent in pursuing a franchise.
3. Demonstrate the franchisee’s overall compliance with the franchisor’s rules. “That’s one of the biggest challenges, having to plug every single hole to the operating manual,” Brito said. “We need to tell the story and the only ones who can really do that are the clients. And the clients need to be prepared to do that.”
The American Bar Association’s Forum on Franchising drew more than 900 attendees and ended October 18.