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Testing Before Testifying: Keeping your good witness from going bad0

23 July 2014

Your key witness has just finished their deposition. They were combative, defensive, and unlikeable. Worst of all their testimony was off message and damaging. They did great in the prep sessions and you were sure they would do well in the deposition too. But now your case is in a place you had not counted on. It’s a disaster.

Unexpected testimony can be catastrophic in litigation. Bad depositions can make small cases large. Bad trial testimony can lead to inequitable settlements, baseless awards, and at times, damaging headlines.

WHY DO GOOD WITNESSES GO BAD?

Witnesses unexpectedly go bad when they begin their testimony with unrealistic expectations and discover while under oath that they lack the skills necessary to maintain control under the pressures of real testimony. It is one thing for the witness to do well in preparatory sessions where they are not on the record and can call for a timeout or a do-over; there is no judge, no jury, no opposing counsel, and no sworn oath to maintain. But what happens to the same witness if they simply cannot stand up to opposing counsel? The witness becomes anxious, confused, agitated, and may even outright panic. When stress levels get high enough, it can even trigger the “fight or flight” response, leading the witness to either acquiesce to any assertion (e.g. flight mode) or become openly combative (e.g. fight mode).

PREPARATION IS NOT TRAINING

Good witness testimony takes into consideration the broader context of the case narrative, themes, and key facts and issues. As such, witnesses must be taught about the case before they can practice testifying. There is no replacement for engaging in a thorough case review, discussing the rules of testimony, ensuring the witness understands the case themes, the record, and their talking points, and of course addressing any specific or personal concerns the witness may have.

Witnesses must also practice mock Q&A and receive timely feedback to develop the basic skills needed to testify. A skilled witness is one demonstrates the ability to move beyond recitation and spin control, and can consistently listen closely, consider carefully, and deliver their answer in a manner that conveys confidence and inspires trust.

Sure, they did well in your conference room, but how will they do in the courtroom?

TRAINING IS NOT TESTING

Once you conclude your witness has learned what they need to know, and has acquired the necessary skills, it remains to be seen whether they can they perform under real pressure, or if they are still at risk for derailing.

Predicting how a witness will do under oath requires testing them under conditions that simulate future performance conditions as realistically as possible. This means conducting a mock examination in a setting which not only looks and feels realistic, but also creates as many of the same demands, expectations, limitations, and pressures as possible.

Many People Fear Public Speaking More Than Death

There is a public speaking aspect to testifying that is lacking in standard preparation sessions. For a test session to be a realistic simulation, the witness needs to feel the pressure of performing in front of strangers. Counsel can bring in strangers to observe. These observers need not be familiar with the case, nor do they need to provide feedback. What is important is that they not be introduced to the witness, and that their role and purpose for being present remain somewhat a mystery. The less the witness knows of these strangers’ backgrounds and role as observers, the more they will begin to feel a level of performance demand similar to actual testimony.

Witnesses Have Not Built Rapport with Opposing Counsel

In real testimony, the witness is being examined by a stranger. The lack of rapport creates an additional challenge for the witness that goes beyond their experiences answering mock questions from a familiar person. We recommend that counsel arrange for a colleague (preferably one whom the witness does not know) to step in and fulfill the role of examining counsel for the testing phase. As with the unfamiliar observers mentioned above, very little, if any, introduction should be made.

Under Oath There are No Timeouts or Do-Overs

Finally, actual testimony carries with it very real limitations and obligations enforced by the court. The witness is under oath to tell the truth and their responses are recorded. The witness cannot ask their own questions, or seek help from their counsel. In the testing session, counsel should set firm ground rules that there are no timeouts to discuss concepts, no note taking or note reading, and the session will be videotaped and the witness will be expected to explain and justify any unexpected answers following the test. In combination, these measures serve to create realistic performance pressures because they instill a desire in the witness to “get it right.”

CONCLUSION

It is too often a surprise who does well and who collapses under oath. It is our experience that much of the uncertainty surrounding witness testimony both in deposition and on the stand is avoidable.

Witnesses need help acquiring both the knowledge and the skills to be able to testify well, and so there needs to be time spent on preparation and also on skills training. But witnesses also need to have realistic expectations, and there is no substitute for being challenged to perform within as realistic a setting as possible. Yes, it takes time. No, it is not easy. But it will be worth it if afterward the witness says, “I felt like I had seen it all before and knew exactly what to do.”


Witness Report Card: Four “A’s” you DO NOT want them to earn

Bill Kanasky, Ph.D. Bill Kanasky, Ph.D.
bkanasky@courtroomsciences.com
06 July 2014

There are four potent psychological landmines that will damage your witness’s credibility every time: Anxiety, Anger, Arrogance, and Apathy.  One or more of these factors routinely results in major headaches for trial attorneys attempting to prepare their witnesses for deposition or trial testimony. The good news: all of these are detectable and fixable.

Let’s take a closer look:

  • Anxiety – By far the top barrier to effective communication, anxiety can conceal a witness’s true character, motivation and credibility. Even worse, the physical and psychological symptoms of anxiety send a message of “I am not prepared, I am scared, I am intimidated, and I have no confidence in my answers.” To achieve the perception of credibility, witnesses need to be confident, assertive, and professional---and anxiety will destroy all three, and thus destroy credibility. Some level of anxiety is normal, and perhaps good, as we want the witness to be “on their toes” during questioning. The Answer: thoroughly evaluate the witness’s anxiety levels and find the SOURCE; often the source of the anxiety is deep-rooted and is completely unrelated to the case.

  • Anger – Many witnesses are pretty ticked off that they have to go through the legal process, and many are furious because they feel that the case has no merits. Angry witnesses are very dangerous, as they can exhibit: Volcanic and random outbursts, a tendency to "jump the gun" in defending oneself, and an overuse of sarcasm. Plaintiff attorneys LOVE angry defense witnesses, as their anger severely impairs their communication skills and subsequently wipes out their credibility. We interview over 5,000 jurors annually and they tell us that: “poise, composure, and professionalism = credibility.” The Answer: give the witness the opportunity to vent and process their anger before their testimony preparation; let them blow off steam, let them heal, and then proceed with preparation.

  • Arrogance – Want to get a jury REALLY mad at you? Have your witness display arrogance…works every single time. This is a major problem with higher level witnesses (i.e., C-level executives, managers, celebrities, physicians, etc). The strategic (and economic) cost of arrogance is very high, as the testimony becomes immediately and permanently poisoned. On paper, these should be the most credible and effective witnesses of all, given the high levels of intelligence and professional achievement involved. The problem is that in the business world, a good dash of arrogance may not only be beneficial to one’s career, it may even be necessary for professional survival. The Answer: carefully remove arrogance (without interrupting confidence/assertiveness) and carefully insert a dose of humility (but only moderate amount).

  •  Apathy – So your witness has no passion? No conviction? No motivation? Guess what?—they have no credibility either. Apathy typically occurs because the witness doesn’t care about you, your case, or the consequences. Apathy is particularly problematic with witnesses that are no longer tied to the defense (i.e., former employees). This makes sense, as the witness has to do all of the work, go through the grueling litigation process, put up with all of your phone calls and demands, and then receive no reward in the end. Sounds fun to me, where do I sign up? The Answer: make the process worth their while; create internal and emotional rewards that will be appealing.

Anxiety, anger, arrogance and apathy all negatively impact your witness’s CREDIBILITY at the jury level, even if they are telling the truth! All too often, these factors are ignored, underestimated and given little or no attention in the witness preparation process. In fact, the vast majority of these problems are first detected during the deposition, when everything is on the record and each mistake hurts. The price of detecting and fixing these issues early in your case is far more economical than the costly result of your witness losing their credibility during deposition, or even worse, on the stand.


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