5 Terrible Mistakes To Avoid In Civil Litigation Witness Preparation

Steve Wood, Ph.D. & Bill Kanasky, Jr., Ph.D.

Given the rapid rise in nuclear verdicts and nuclear settlements, witness preparation has never been more important in civil litigation. The quality of the deposition testimony from key defense witnesses has a tremendous impact on settlement values and jury decision-making at trial. Despite this, defense counsel continues to make critical mistakes while preparing their key witnesses resulting in weak, if not damaging, testimony. Fortunately, these mistakes are fixable, provided defense counsel obtains a better understanding of the witness’s thought processes, emotions, and inherent vulnerabilities. 

#1: Failure to establish trust with the witness

Defense counsel often overestimates the level of trust defense witnesses have in them. “Of course they trust me; I’m the company attorney” is a common assumption that can lead to disaster during testimony. Many witnesses do not trust the company’s attorney because they do not generally trust attorneys or have had a negative experience with the legal system. Additionally, cynical and disgruntled employees usually do not trust the company or its leaders, and that distrust often extends to defense counsel.

An assumption of witness trust can have grave consequences, as distrustful witnesses may offer negative opinions or harmful information at deposition and trial that they never shared with defense counsel during preparation. Therefore, one of the first things attorneys should do is take time to listen to witnesses and gain their trust. The key to building trust is taking the necessary time to build the relationship properly. As with any other relationship, this requires effort in learning about the witnesses, letting them vent, answering all their questions, and authentically expressing concern for them. Taking an “all business approach” and jumping immediately into the case facts and evidence at every witness preparation meeting will likely impair relationship building. Moreover, it may lead to apathy, anger, and resentment as witnesses may feel their own attorney is constantly cross-examining them.

#2: Failure to assess the witness’s emotional status

Simply put, emotion greatly disrupts cognition. Heightened emotions related to the case and sensitive personal issues can severely disrupt witness preparation and testimony performance. Many witnesses experience anxiety, fear, depression, sadness, or guilt after an adverse event that caused catastrophic injury or death. Some of these witnesses even report multiple signs and symptoms of post-traumatic stress disorder. Other witnesses say they fear losing their jobs or being demoted if they do not testify effectively. Some may even be very angry that a lawsuit has been filed. Finally, some witnesses have emotional struggles unrelated to the litigation, such as financial problems, family illness, personal health issues, and marriage problems. These emotional struggles can cripple witness preparation and deposition testimony if they are not identified and addressed.

Many attorneys are uncomfortable with or lack understanding of emotion and behavior and cannot correctly assess their witnesses’ emotional status. However, attorneys do not need a Ph.D. in Clinical Psychology to conduct a basic emotional assessment of their witnesses. These assessments should be ongoing and include key questions that address mental and physical symptoms of stress:

a.  Mental: What is your stress level on a scale of 0-10? Are you experiencing any negative thoughts about the case? Do you feel anxious, depressed, or angry? Are you able to concentrate at work? How is your family and social life going? Is anything causing you stress outside of the case?

b.  Physical: What is your energy level on a scale of 0-10?  How is your sleep quality? How is your diet? Are you undereating or overeating due to emotions? Have you been exercising? Experiencing any pain? Any other physical complaints?

Today, many incidents that involve catastrophic injury or death are recorded on video. For example, dashcam video devices often depict an entire accident from start to finish. Viewing this type of evidence in deposition preparation can trigger extreme emotional reactions for witnesses and derail preparation efforts. In such instances, the “suck it up, buttercup” approach will only worsen the witnesses’ emotional problems. Instead, witnesses may need to watch the video repeatedly in the presence of defense counsel, taking time to process their thoughts and feelings after each viewing. This approach helps witnesses “habituate” to the distressing stimuli after repeated exposures.  Allowing the witnesses time to process their emotions will help them provide more effective deposition testimony.    

Emotion is the top barrier to effective witness testimony, as the emotional witness cannot adequately listen to questions, process information, or articulate answers. Therefore, having a basic understanding of your witness’ emotional status is imperative to your success in witness preparation and the witness’ performance. Witnesses emotionally struggling will need more frequent preparation, but in shorter sessions, as they will wear down faster than witnesses without such burdens. Otherwise, an emotionally unstable witness can be a "ticking time bomb" at deposition or trial.  

#3: Failure to spend the necessary time with the witness

The days of preparing witnesses for their deposition the week before, the day before, or the morning of are over, as the economic stakes are far too high today. The rise of nuclear verdicts and nuclear settlements is alarming, and much of the economic damage results from poor deposition performance by key defense witnesses. Countless defense attorneys have stated, "I know I need to spend more preparation time with my witnesses, but the client is reluctant to pay for it; they don’t understand that this is an intensive process that takes time.”  The plaintiff’s bar has developed sophisticated methods for defense witnesses, particularly Reptile Theory cross-examination tactics. Therefore, the time necessary to adequately prepare witnesses for testimony has dramatically increased.  

Defense counsel needs to help their clients understand that time preparing witnesses is not a litigation expense; instead, it is a key investment into the case that can lead to massive cost-savings at settlement or trial. Put another way, cutting corners on witness preparation time to reduce immediate litigation costs can lead to increased settlement amounts and plaintiff verdicts with high damages. Thorough witness preparation with corporate representatives and those in leadership roles is particularly important, as that testimony can make or break a case. 

#4: Not simulating testimony conditions

Doing witness preparation in witnesses’ comfortable and familiar work settings is a major mistake. First, work environments are distracting to witnesses. General noise, overhead paging, ringing phones, colleagues, and other workplace distractions can severely hamper the effectiveness of witness preparation. Witnesses need to be able to focus and concentrate during preparation and work environments generally do not allow for that. While traveling to the law firm office may represent a mild inconvenience for witnesses, it will result in more successful preparation and testimony. Second, work environments are too comfortable and do not have the natural stressors associated with a legal environment. Most non-lawyers feel out of their element in a legal setting, usually leading to increased fear, anxiety, and general discomfort. Witnesses prepared in a comfortable and familiar work setting can perform poorly at deposition or trial strictly due to the “shock” of the new legal environment.

Additionally, one must consider the concept of state-dependent learning, which is generally understood as the phenomenon that behavior is learned better if someone’s internal mental state is similar during practice sessions (e.g., witness preparation sessions) and actual testing of a behavior (e.g., sworn testimony). Meaning, the phrase “practice like you play” applies to witness preparation, as it is imperative to have these sessions mirror the environment of the actual testimony as much as possible. For trial testimony, attorneys should take witnesses to the courthouse (preferably the actual courtroom) to familiarize them with that legal setting. For deposition testimony, attorneys should prepare witnesses (to the extent possible) in the same room where the deposition will take place. This will help witnesses become more comfortable with the environment and room layout, as well helping to identify any potential problems (e.g., a swiveling chair) before the deposition. 

#5: Assuming the “experienced” witness will be effective

One of the more difficult types of witnesses to train is the “experienced” one. These are the witnesses who have been deposed before, and defense counsel often believes they do not need additional training. Even worse, these witnesses often think they know enough about the deposition process that they do not need additional training. As a result, witness preparation sessions can be difficult because the attorneys and witnesses may view it as a “waste of time and resources.” This type of thinking can be problematic for a few reasons. 

First, there is a psychological concept known as the Dunning-Kruger effect. This is a cognitive bias where individuals with low ability, expertise, or knowledge in a given area overestimate their abilities.  For example, this is the witness who has been deposed before and states, “I would never make the errors that other witnesses make.” However, we have often found by going back through their prior depositions that the witnesses made the exact mistakes they said they would never make. In addition, these witnesses will sometimes try to take a more dominant role in the preparation session and portray a “know-it-all” attitude. This type of mentality creates barriers to the learning process and typically sets witnesses up for failure. 

The second problematic psychological concept pertaining to experienced witnesses is the Yerkes-Dodson law, which states there is an optimal level of arousal – too much arousal results in poor performance (e.g., first-time witnesses), and insufficient arousal results in poor performance (e.g., experienced witnesses).  We have found that these experienced witnesses who are too comfortable in their depositions tend to give long-winded responses or unsuccessfully “pivot” more than less experienced ones. Some of the worst depositions with long-winded, defensive responses we have seen have come from “experienced” witnesses.

In closing, effective witness testimony at deposition and trial is essential for positive outcomes in civil litigation.  Defense counsel can improve their preparation efforts by establishing trust early, understanding their witness’ emotions, spending more time with witnesses, preparing witnesses in a legal (vs. work) environment, and not assuming an experienced witness will perform well in a new matter.  In the current era of nuclear verdicts and nuclear settlements, these practical adjustments can strategically and economically pay off for defendants facing litigation.

Preventing Nuclear Settlements at Deposition

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