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

Bill Kanasky, Ph.D. Bill Kanasky, Ph.D.
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.

Audio-Visual Nightmares at Trial: How to Avoid Losing Your Audience0

24 June 2014

Imagine a scenario in which you are a trial attorney and finally in front of a jury in a case that has consumed your life for a long time.  Your case is building to an important crescendo. You have planned this moment for years, spent countless hours of time and money preparing for it and just when you tell your AV technician to “hit play,” nothing happens. The screen goes black and the system completely shuts down. Not only has your system crashed, the person helping you is at a loss… what do you do? The moment is lost forever and you’ve lost the momentum, the jury’s attention and your credibility not only with the jury but with your client as well. Instead of hitting a home run, you and your team now look incompetent, unprepared, and the Judge and Jury begin to lose patience with you for wasting precious time - all of which could cost you your case.

Case in point:  In February 2014, I was hired as the technical specialist by a trial team representing the plaintiff on an insurance case in Houston, TX.  In an attempt to save money, instead of using an experienced trial technology specialist, the insurance company’s trial team decided their paralegal could display their evidence to the jury. During the third day of trial, just as opposing counsel was going to play the rebuttal video of one of their most important witnesses, the defense experienced a technical breakdown with their computer. During the next few extremely uncomfortable moments of scrambling, trying to resolve the problem at hand, and the paralegal attempting to “troubleshoot,” the problem, the Judge finally lost patience and asked me (the opposing technology specialist), if I could display their documents and video for them in order to keep from wasting the court’s and the jury’s time. As an experienced trial technician, I knew exactly what to do and was able to resolve the problem. The whole breakdown in technology only happened because the defense was using a paralegal instead of an experienced technician and it came across negatively to the Judge and Jury. It’s hard to imagine how defense counsel’s client felt, how defense counsel felt, the impact this breakdown had on the defense team’s morale and what they would have done if I hadn’t been there and been willing to assist.

Lesson learned… it takes more than “learning a program” to be able present evidence to a jury smoothly and seamlessly.  You need to have trial presentation experience, you need to be technically savvy and you must be able to anticipate potential problems, have redundancies in place and the knowledge to resolve technical issues quickly and imperceptibly while under pressure. After spending a lot of money preparing your case, it is a dangerous gamble to take short cuts when preparing the technological side of your case. Don’t let this happen to you.

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