By Leslie King O’Neal
Miles Davis: “It’s the notes you don’t play.”
Renowned jazz trumpeter, Miles Davis[i], once said, “It’s not the notes you play. It’s the notes you don’t play.” The art is knowing what to leave out—and when. This concept applies to fact witness testimony in arbitration or in trial as well as to jazz music. While construction projects often involve hundreds or thousands of documents, only a small number of key documents often are the core of the case. The trial lawyer’s art lies in culling through the morass of documents to focus on those that are key to the case’s overall theme. Then, counsel must prepare the fact witnesses to narrate the story behind the records and fill in the gaps. The combination of the key documents and the witness’s testimony creates a harmony like a great jazz riff.
“Performative” Witnesses Lack Credibility
Josh Robbins,[ii] former international arbitration lawyer turned jury trial advocate, discussed his approach to witness testimony in document-heavy cases in a recent interview. In his experience, jurors are skeptical of party witnesses who are “performative” and perceived as “making a pitch.” He believes jurors discount party witnesses’ testimony as self-serving. They want to “see the receipts,” that is the contemporaneous records that document what happened. Such records are equally important to support witnesses’ testimony in arbitration. Like jurors, arbitrators are skeptical of witness testimony lacking support from or contradicting the contemporaneous project records.
Contemporaneous Records Are Key–But Lawyers Must Curate
Describing contemporaneous records as “witnesses who don’t forget, don’t lie and don’t have motives,” Mr. Robbins recommends basing the case on the key records, with live witnesses “narrating the records and filling in the gaps.”[iii] Maintaining useful contemporaneous records during a project requires considerable effort and discipline, but it is critical to support construction disputes. Today’s projects have an overabundance of data, requiring the lawyer to home in on the key documents and data necessary for the case. Resist the urge to “dump” all the data into the record. Arbitrators, judges and jurors may not find the gold nuggets amidst the mass of data.
Document, Document, Document
“Good documentation is invaluable in resolving misunderstandings before they escalate into disputes. . . If a dispute does arise that cannot be resolved short of litigation or arbitration, the party that can produce carefully prepared authentic job records supporting its position usually will prevail.”[iv] In the last decade, project records have changed from paper files kept in banker’s boxes to massive amounts of electronic data stored on computers or in the cloud. However, the basic types of records are the same: daily reports, schedules, change orders, RFI’s, meeting minutes, shop drawings, submittals, payment records, photographs and videos. Fact witnesses need to familiarize themselves with the project records to refresh their recollections on important dates and events.
Preparing Construction Personnel for Testimony
Sometimes field personnel are the best witnesses regarding particular events during a project. In the author’s experience, juries (and arbitrators) usually find superintendents, field engineers, and foreman to be authentic and credible witnesses. However, if they are not properly prepared, when put in a pressure-filled hearing room, surrounded by strangers and peppered with difficult questions about long-ago events, they may be overwhelmed. If that happens, their credibility and testimony may be affected negatively.
Good Witness Preparation Takes Time
Ideally, witness preparation will start early in the case. Potential witnesses should meet with counsel early on to get acquainted and to build trust. Counsel will provide summary information about the case and how the witness’s testimony fits into it.
Provide Copies of Relevant Documents
Depending on the witness’s expected testimony, providing copies of relevant documents, such as daily reports, emails, meeting minutes, photographs and videos is useful. Also, providing an overall timeline of the project and the claim events and the names of key people involved can help the witness’s recollection. In many cases, the project at issue took place several years earlier. The witness may have worked on many different projects since then, making it difficult to recall details.
Get Them Comfortable with the Process
Most construction personnel are not familiar with the legal system, beyond what they have seen on TV or in the movies. They do not understand the legal process or legal jargon. They may feel intimidated sitting in a conference room or a courtroom, surrounded by strangers, being asked pointed questions about events that happened years ago. Let the witness see the room where he or she will testify. If possible, let them sit in the chair or the witness stand. If they are testifying at deposition and there will be a video camera, practice with a camera facing the witness. The more realistic the setting, the better.
Mock Direct and Cross Exam
Do a short, but realistic preliminary mock direct and cross examination, including objections. Practice showing the witness documents on a screen if that will be done at the hearing. The session should not be exhausting, but it should be enough to give the witness a good idea of what to expect. No later than the night before their testimony, counsel should do a complete dry run of the testimony, with exhibits, and a mock cross exam. Practice helps lessen the witness’s fear of the unknown.
Dealing with Witness Stress and Anxiety
Before the day of the deposition or hearing, discuss any personal concerns the witness may have that could cause stress or anxiety. For example, does the witness have child care issues or caregiving responsibilities? Counsel can ask the client to assist in providing backup care. Be sure the witness knows exactly where to go and where to park. Provide a parking pass if necessary. For some witnesses, having a paralegal or associate meet them in the parking lot to escort them to the hearing is a good idea.
Suggest Stress Relieving Methods
Suggest the witness get a good night’s sleep the night before the hearing. Avoiding alcohol is a good idea. Providing water and healthy snacks (fruit, nuts, cheese) before testimony helps keep the witness hydrated and prevents hunger pangs. Deep breathing is known to relieve stress quickly. Suggest the witness practice some deep breathing techniques before starting their testimony. If they become stressed or anxious during the examination, they can use these techniques during a break to calm themselves. (This works for lawyers too).[v]
Takeaways
- Contemporaneous records are key to telling the story in construction disputes, but counsel must focus on the most important documents. Remember, the notes you don’t play are as important as those you do.
- Contemporaneous records are witnesses who don’t lie, don’t forget and don’t have motives.
- Fact witnesses narrate the documents and fill in the gaps.
- Construction personnel can be effective and credible witnesses, but counsel should begin witness preparation when the case begins.
[i] Miles Davis was one of the most influential and acclaimed figures in the history of jazz. Miles Davis – Wikipedia
[ii] Noted trial lawyer and partner in the Orange County office of Crowell & Moring Joshua M. Robbins | Crowell & Moring LLP
[iii] Josh Robbins on Rethinking Trial Advocacy, The Los Angeles and San Francisco Daily Journal (July 15, 2026) Joshua Robbins on rethinking trial advocacy; See also Podcast, In the Counsel’s Chair, (July 7, 2026) Daily Journal
[iv] Stuart Bartholomew, Construction Contracting: Business and Legal Principles 2d Ed.)( Va. Tech. 2022), Chapter 21, Documentation and Records, 21. Documentation and Records – Construction Contracting
[v] 10 strategies for managing anxiety – Beyond Blue – Beyond Blue; See also, Christine Atwood & Melissa Osio Martinez, Preparing Construction Witnesses, CLM Magazine (July 22, 2026) https://www.theclm.org/Magazine/articles/preparing-construction-witnesses/3478
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