How to Prepare for the Young or Inexperienced Witness
The magnitude of impact that witness performance has on settlement and verdict results must correspondingly make witness preparation one of the most fundamental and essential tasks a trial attorney performs. This may even be more crucial when dealing with a young or inexperienced witness. The emotionality of a young or inexperienced witness may cause them to be even more susceptible to experiencing an amygdala hijack or succumbing to the fight-or-flight response during questioning.
Thwarted by their own emotions, inexperienced witnesses are more likely to be angry and defensive, wanting to defend themselves and explain their actions. Rather than helping in the way they expect, this behavior leaves them prone to succumb to manipulative reptile questions, making critical errors, or even derailing the case. Frequently coming across as argumentative or evasive, the poor testimony from these witnesses during a deposition or trial can lead to bad outcomes, including nuclear settlements or nuclear verdicts.
With the outcome of your case inexorably tied to the performance of your witnesses, Courtroom Sciences can help you mitigate risk with effective witness training. As part of the legal team, Courtroom Sciences can help prepare witnesses through a sophisticated neurocognitive training program that leads to superior litigation outcomes. Courtroom Sciences can help trial attorneys ensure that witnesses give strong, compelling testimony through effective witness preparation.
What are the best ways to help an inexperienced witness' testimony succeed?
For young or inexperienced witnesses to deliver well-received testimony, they must utilize cognitive reappraisal skills. Active cognitive reappraisal is a deliberate emotional regulation strategy involving actively reinterpreting a negative stimulus as a neutral one. During a deposition or trial, this strategy would enable the witness to detect an emotional threat from opposing counsel, calmly identify the threat as an attempt to bait the witness, and deliver effective testimony.
The Inexperienced Witness
An inexperienced witness facing off with an experienced trial attorney will always yield the same result, and that is that the witness will never come out on top. Instead, the examining attorney will quickly identify the tactics most effective at manipulating the witness and use them to provoke the fight-or-flight response.
Inexperienced witnesses often come into the litigation process with a defensive emotional reaction. These witnesses are frequently resistant to preparation sessions, but they are also highly likely to become argumentative in the deposition. This can cause them to be perceived as unlikeable and not credible.
Another prevalent issue common among inexperienced witnesses is that they don't understand their role in the litigation process, which is to listen closely, consider carefully, and deliver an honest answer. These inexperienced witnesses may frequently try to assume other often unachievable objectives, such as attempting to have scripted lines, persuading opposing counsel, or even trying to win the case. Inexperienced witnesses may also be notably unfamiliar with the litigation process, unsure of how the process works, what the purpose for the deposition is, how it will be conducted, and how long it will last.
Traditional witness preparation does not prepare young or inexperienced witnesses to counter neuropsychological manipulation, leaving these emotional witnesses highly susceptible to becoming baited into fight-or-flight response during deposition or trial testimony. Far too often, the tendency is to focus on state emotional arousability, or getting emotional in the moment, during preparation while neglecting pre-existing, persistent emotions that preclude a witness from giving compelling, credible testimony in the first place.
Preparation Strategies for an Inexperienced Witness
Manipulative questioning tactics used by plaintiff attorneys, including reptile attacks, can disproportionately affect inexperienced witnesses, causing them to appear unreasonable, agitated, or condescending, and could leave your case vulnerable to unpredictable situations.
Preparation strategies for inexperienced witnesses start by getting them to a place where they can emotionally accept what's going on and commit to the process. A witness that is angry, defensive, anxious, or fearful will not be mentally prepared to process information strategically or effectively.
Before diving into the case, looking at documents, records, and emails, it's imperative for defense attorneys to interact with witnesses on a more personal level, asking them questions such as:
● How are you feeling?
● How are you sleeping?
● What are your eating habits?
● How is your concentration?
These are simple questions that attorneys typically don't ask. Yet, they are important questions to ascertain the emotional state of the witness, and asking these questions has a therapeutic effect on the witness when they can then tell you how they feel. This makes witness preparation easier and ultimately makes them better witnesses.
Following these efforts to identify a witness' emotional state, defense attorneys can work with a trained professional to take steps to mitigate their effects by doing the following:
● Putting emotional regulation skills into place allows the witness to effectively manage and respond to an emotional experience.
● Learning cognitive reappraisal skills is a deliberate tactic where a witness is taught how to reinterpret negative stimuli within the deposition environment to prevent the brain from an impulsive, spontaneous reaction.
Inexperienced witnesses also require more frequent follow-ups between official preparation meetings. There may often be 30 days or more between witness preparation meetings, and defense attorneys shouldn't let that significant amount of time elapse without contacting their witness. These follow-up conversations, which can be short, a mere 10 minutes to check-in and follow up with how the witness is doing emotionally, can keep them focused and on track. Defense attorneys can also ensure that witnesses are focused on continued practice and utilization of learned skills, allowing them to provide powerful and effective testimony when it matters the most.
Courtroom Sciences knows that the success of your case is tied to the performance of your witness, with just a single rattled witness having the capability to disproportionately impact settlement and trial outcomes and result in a nuclear verdict. Considering each witness's specific emotional state, Courtroom Sciences provides psychology-based witness training that will leave them poised, confident, and persuasive. Speak with one of our experts to get started.
● Inexperienced witnesses often come into the litigation process with a defensive emotional reaction.
● Inexperienced witnesses are frequently resistant to preparation sessions.
● Preparation strategies for inexperienced witnesses start by getting them to a place where they can emotionally accept what's going on and commit to the process.
● Courtroom Sciences' psychology-based witness training program will prepare young and inexperienced witnesses to be poised, confident, and persuasive.
Juror Confirmation Bias