Witnesses, testimony, and
questioning
A witness matters because of the material facts the witness can
establish—not because the witness generally supports one side.
Select witnesses by
personal knowledge
For each proposed witness, identify:
- what the witness personally saw, heard, did, received, or
recorded; - which legal element or disputed fact the testimony addresses;
- whether another witness would merely repeat the same point;
- whether the witness can authenticate a document; and
- whether the witness has information that could harm the case.
A supervisor who made the discharge decision may matter more than an
HR witness who later reviewed a file. A coworker who saw the incident
may matter more than a manager repeating a report.
Prepare testimony
without scripting it
Review the chronology, documents, legal issues, and likely adverse
questions. The witness should testify truthfully in their own words. Do
not supply a memorized story or conceal facts that are likely to
emerge.
Direct examination
Use clear, mostly open questions. Establish the witness’s basis of
knowledge before asking for conclusions. Move in a logical order and use
documents where they help the witness explain material facts.
Cross-examination
Use focused questions to test perception, memory, bias, source,
completeness, inconsistency, and missing evidence. Cross can also obtain
favorable admissions. It is not always necessary; an unfocused cross may
strengthen the opposing account.
Missing witnesses
Identify who actually observed the event, made the decision,
conducted the investigation, or created the record. If that person is
absent, develop the gap: What does the appearing witness know
personally? What is merely repeated? What source was not produced? What
opportunity existed to obtain the witness?
Do not assume the absence automatically proves your case. Explain why
the missing testimony matters to a required finding.
Subpoenas
Subpoena authority and procedure vary. Begin early. Identify the
person or record with precision, the material fact expected, why
voluntary production is unlikely, the service requirements, witness fees
if any, and the deadline for requesting enforcement or a
continuance.
Keep questioning tied to the
issue
The purpose is not to prove every workplace grievance. Build
testimony that resolves the noticed unemployment questions and preserves
any material procedural issue.