You simply must prepare the witness about the story told in the written documents. There are two ways to approach this. 

One is to simply talk to him about the events that are at the core of the dispute. It should be as much a conversation as you can make it. Save the tough questioning for another round.

The other is to have first given him a set of the relevant documents to study to refresh his recollection, and then have the initial conversation about the events.

I think most people will appreciate having been given the documents first rather than having been allowed to misspeak and then perhaps be embarrassed when the documented history does not agree. If embarrassment raises its ugly head, it will either be a positive learning experience or you will have to go back and rebuild part of the relationship with him.

Keep reminding him that there is no agenda to tell the 'story' in a particular direction. At this point the object is to get him to appreciate what really happened and sort out any incorrect recollections he may have had. In this manner you are consolidating the truth in his mind and eliminating unreliable recollections.

It may be that some documentation does not mean what it seems to mean, and this round will help you sort that out also.

People do not always say things in an unambiguous manner.

Sometimes it is useful for the witness to know what others have said about the events if their statements seem to conflict with his. If there is genuine conflict, it needs to get sorted out. If not, telling him what others had to say may not be productive. It would be helpful in this phase to know whether he and others who were involved have had conversations amongst themselves about the events, and what those conversations were. It is now a distillation process for the witness and for the documentation.

It is important to discuss the completeness of the documents.

  • Are all the files there?
  • Is anything missing?
  • Have documents been removed from any files?

If so, what happened to them?

  • File searchers and those involved in the operative events have been known to remove and destroy files.
  • In-house lawyers, seeking to impress their only client with their loyalty will do that also.

Witnesses will be asked about records retention/destruction when they are deposed.

Find out the truth before you are on a public record and under oath.

Once the distillation process is complete, and the witness and you are both confident that the essential truth is clear to both of you, and you are still comfortable with your case, it is time for round two -- noise reduction.


Tamerlane group's purpose is to prevent you from shooting yourself in the foot when you see a bad event threaten to develop. Our focused expertise in crisis management can prevent these situations from developing if we are called before someone makes self-humiliating public statements/files absurd lawsuits. 

(Here is Part 3. This is Part 4 of 6 on How to Win Franchise Trials.  Here is Part 5)



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