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Benjamin Franklin was once quoted as saying, "By failing to prepare,
you are preparing to fail." is is especially true when applied to litigated
trials. A trial is the culmination of every aspect of a default lawsuit,
from pleadings to discovery to testimony, each stage of the litigation is
important to the trial outcome. Who is the most important participant at
the trial? Many people would opine that the judge or the attorneys have
the most impact; however, the witness is usually the key to whether trial
ends in success or failure.
In a mortgage default scenario, most of
our trials are decided by a judge, not a jury.
Many times, the only witness at the trial
is the witness from the mortgage servicer.
e witness testimony is imperative to lay
the foundation for admitting evidence and
proving the case. As such, witness preparation
for a trial could be considered the most
necessary and important step to ensure the
case is properly presented. ere are several
steps a witness can take to be well prepared to
give testimony.
REVIEW THE PLEADINGS
To have the best opportunity for success,
the preparation for trial should begin by
reviewing the case from the very beginning.
It is important, given the amount of pre-
complaint conditions and pleading standards
required in a default case, that the witness
be familiar with the grounds pled in the
complaint. ese generally include the default
date, the standard of standing employed,
and may also include statements regarding
loan modifications or conditions precedent.
e statements in the complaint frame the
case, and it is very common that opposing
parties utilize the complaint to organize their
questions and determine their trial strategy.
At nearly every deposition, opposing counsel
THE ART OF
TRIAL WITNESS
PREPARATION
Legal Industry Update
NATIONAL FOCUS
By: Jane Bond and Curtis Wilson
