Answering Your Questions about Challenging Witness Situations
No witness is perfect. While some will put in as little effort as possible, others may try to win the deposition during preparation sessions. Whether overly agreeable, young, inexperienced, or simply emotional, witnesses can make or break a case and ought to be adequately prepared for testimony at deposition or trial. With this in mind, we outline three situations and tactics for attorneys to utilize when preparing challenging witnesses.
How do I handle challenging witness situations?
Three especially challenging situations include handling a scared or nervous witness, stopping a witness from trying to win the deposition, and navigating the testimony and performance of witnesses who require a translator. Attorneys who are armed with knowledge to help build trust and properly train witnesses will experience greater success than their counterparts.
Challenging Witness Situation #1: How Do I Engage a Scared or Nervous Witness?
The litigation process is foreign to people who have never been through it before or are traumatized by the lawsuit itself, and can cause witnesses to be scared or nervous. Too many emails or phone calls may feel aggressive to a witness and could be interpreted as a negative stimulus, eliciting a fear response. For this reason, attorneys should be careful with how they handle witnesses and start building trust from day one.
Building witness trust can take many forms and may look different for each witness. Ideally, you’d like your first meeting to happen in-person to most effectively assess the witness and help dissipate any fear the witness might have. Attorneys should use this meeting to explain the litigation process, point out that you will need to follow up with them regularly, and ask them to identify the best way to reach them. Defense attorneys can also take the opportunity to address any worries the witness is willing to share and try to reassure them.
Challenging Witness Situation #2: How Do I Stop My Witness From Trying to Win the Deposition During Preparation Sessions?
A common issue among inexperienced witnesses is that they don’t understand their role in the litigation. This becomes a challenging witness situation when they may feel compelled to try to ‘win’ during their deposition testimony. The brain is inherently wired to defend itself in the face of an adversary, attempting to guard or shield oneself from attack or injury. Witnesses instinctively want to try to explain or defend themselves. Often their minds are so set on the belief that they have to protect their professional integrity and take the fight to the plaintiff's attorney that they succumb to common mistakes such as providing long answers or pivoting.
Witnesses must understand that they can’t win a deposition but can lose it. When a witness provides a long answer, they almost unavoidably share additional information with opposing counsel, which leads to even more questions and cognitive fatigue for the witness. Pivoting is another way a witness gives the plaintiff's counsel more information, but this time their testimony turns into an argument, which the witness can't win. Defense attorneys must ensure their witnesses understand they are not there to teach, argue, or defend. They must be honest and truthful while being succinct and to the point.
Challenging Witness Situation #3: What is the Best Way to Conduct Witness Preparation With a Translator?
The first thing to remember is that conducting witness preparation with a translator will lengthen the time required for witness preparation. It can typically triple the amount of time needed for adequate witness preparation. It’s also paramount to have a translator with experience in litigation situations, who knows what they are doing, and ideally, someone you trust and perhaps have even used before. Additionally, defense attorneys will want to ensure that the translator who assists with the witness preparation is the same translator that will be there at the deposition. Consistency is the key, as having a change in translator can create confusion and could possibly cause something to be lost in translation if there hasn’t been the preparation together beforehand.
Courtroom Sciences knows that the success of your case is tied to the performance of your witness, with just a single challenging witness situation having the capability to disproportionately impact settlement and trial outcomes and result in a nuclear verdict or nuclear settlement. Carefully and strategically handling challenging witness situations, Courtroom Sciences provides psychology-based witness training that will leave them poised, confident, and persuasive. Speak with one of our experts to get started.
● Attorneys ought to start early when building trust with scared or nervous witnesses.
● Ensure witnesses understand that they can’t win a deposition but can lose it.
● When using a witness translator, allow extra time for witness preparation and ensure the same translator is present throughout proceedings.
● Courtroom Sciences' psychology-based witness training program will prepare challenging witnesses to be poised, confident, and persuasive.
Preventing Nuclear Settlements at Deposition