Don't Be A Bore and Other Deposition Preparation Advice
Preparing witnesses for testimony is a crucial step to ensuring positive outcomes. Witness performance can significantly impact settlement, verdict results, and damage awards. Despite poor witness performance having the potential to disproportionately impact settlement and trial outcomes or result in a nuclear verdict, traditional deposition preparation strategies do not prepare witnesses for the manipulative questions, including reptile theory tricks, they will inevitably face.
There are three critical mistakes witnesses frequently make that hold the potential to devastate your case: providing long answers, pivoting, and succumbing to anchor bias. At deposition, long answers from witnesses lead to the sharing of more information with opposing counsel, while witnesses who pivot during testimony open the door to a counter-attack. The psychology experts at Courtroom Sciences can help you mitigate risk with effective witness preparation. Our sophisticated neuro-cognitive witness training program prepares witnesses to provide strong, effective testimony when it matters the most.
Is deposition preparation worth the cost and effort?
The success of your case is tied directly to the performance of your witnesses. During a deposition or trial, poor testimony can lead to bad outcomes, disproportionately impact settlement and trial outcomes, and potentially lead to nuclear verdicts. Effective deposition preparation is essential to secure composed and prepared witnesses who will deliver compelling testimony and won't be baited by opposing counsel.
The Danger of Long Answers
Long answers are dangerous at deposition and trial. Long answers inevitably lead to the witness opening a door that otherwise would not have been open.
Witnesses must understand that you can’t win a deposition; however, you can lose a deposition. At deposition, long answers from witnesses can lead to more information sharing with opposing counsel. They may bring up new information opposing counsel had no idea even existed, leading to more questions and cognitive fatigue for the witness. Suddenly, a four-hour deposition has turned into a six-hour session, making for a much longer day where the witness has to burn too much mental fuel, leaving them more vulnerable to cognitive mistakes.
At trial, the potential danger from long answers is information saturation for the jury. The jury’s attention span can’t follow the long responses, and they get bored.
Another pitfall of long answers is that the answers themselves become disorganized. When a witness begins to give long answers, what they are doing is answering three or four questions at the same time in one response, causing the witness to get off track and sometimes never even effectively answer the original question. The goal for the witness is for them to strive for accurate, effective answers, not long defensive answers. A witness's answers should be honest, concise, and to the point. Providing short, precise answers also forces the plaintiff's attorney to do the cognitive work, making them ask more questions.
Pivoting Opens the Door to a Counter-Attack
Another way a witness can unintentionally give the plaintiff’s counsel more information is pivoting. This time their testimony turns into an argument, which the witness cannot win. When a witness pivots, they take the bait and walk right into a trap. Originating in the political arena, pivoting is ineffective for politicians, and it is incredibly ineffective for witnesses. Well-seasoned cross-examiners love it when a witness tries to argue and shift away from a fact. Pivoting can make a witness look evasive, nonresponsive, argumentative, or defensive.
The mismatch between an inexperienced witness and a trial attorney is never a fair fight. The witness often allows their emotions to be provoked. Emotionally-compromised witnesses may speed up, neglect to recognize the significance of the line of questioning, fail to separate fact from supposition, or blunder into one or more major concessions.
Witnesses need to learn how to extinguish counter-attack opportunities. They do that primarily by only giving short, concise answers. This way of speaking is different than how humans tend to interact socially and in most work settings, where volunteering additional information makes a person seem engaging, fun, and helpful. Witnesses need to understand that they are not there to teach, argue, or defend. They can be honest and truthful, but at the same time, they need to be succinct and to the point.
Don't Fall for the Anchoring Bias
The anchoring bias is a powerful psychological construct in witness testimony. Once the plaintiff’s attorney sets the anchor, the witness generally answers all subsequent questions in context of the anchor. The reptilian sequence always starts with a series of general safety rule questions followed by more specific danger rule questions. During these questions, the plaintiff's attorney uses clever phrasing and structure to lull a witness into complacency to get them to agree to these questions instinctually.
Once the witness agrees to the reptile safety rules, both general and specific, the anchoring bias is activated, and in subsequent questioning, cognition will be contaminated. The witness will now have to answer the following questions based on their previous answers in the deposition, as opposed to their honest, effective answer.
The way to address this is to break down the cognitive schema in advance. Witnesses can defend against the anchoring bias with deposition preparation that breaks down the cognitive schema and then rebuilds it so terms like safety, risk, danger, and harm, have more realistic, rather than idealistic, definitions. Avoiding the anchoring bias allows the witness to honestly answer all questions without contradicting themselves because they never said yes to the rules.
Courtroom Sciences can help trial attorneys prevent nuclear settlements and verdicts and avoid these critical mistakes through focused witness effectiveness training. Our psychology experts deliver sophisticated neuro-cognitive training that ensures your witnesses are fully prepared for testimony and prevents them from making errors that can devastate your case. Speak with one of our experts to get started.
● Witnesses frequently make three critical mistakes: providing long answers, pivoting, and succumbing to anchor bias.
● Traditional deposition preparation strategies do not prepare witnesses for the manipulative reptile questions they will inevitably face.
● Long answers from witnesses lead to more information sharing with opposing counsel.
● Witnesses who pivot during testimony open the door to a counter-attack.
● Courtroom Sciences' psychology-based witness training program ensures your witnesses are fully prepared for testimony and prevents them from making errors that can devastate your case.
Preventing Nuclear Settlements at Deposition