Myth #2: Our attorneys sufficiently prepare our witnesses
Continuing our series of “Myths of Litigation Science,” we turn to another big myth. When we discuss our witness effectiveness training with potential clients, one of the things that we hear most often is, “our attorneys sufficiently prepare our witnesses.” From our experience, this is not always the case. The reason for this has nothing to do with the experience or ability of the attorney, though. We have worked with highly skilled and highly experienced attorneys across the country. The reason why attorneys are not always successful in preparing their witnesses for deposition and trial testimony is because the legal aspects of the case are only part of the equation for an effective witness.
The four errors witnesses make
There are four errors that witnesses
make when providing testimony. Of these, three are psychological. The first
psychological error witnesses make is cognitive. This error involves the
witness not fully listening to the question, misinterpreting the question,
attempting to figure out where the line of questioning is going, not thinking
clearly, adopting opposing counsel’s inaccurate terminology, etc. We find that
attorneys often attempt to overcome these errors by telling witnesses, “Listen
fully to the question.” However, witnesses often do not recognize that they are
making these cognitive errors or understand why they are making them. This is
where a litigation psychologist comes in. A litigation psychologist with
clinical experience can work with witnesses to describe to them the difference
between “workplace brain” (i.e., efficiency over effectiveness) and “deposition
brain” (i.e., effectiveness over efficiency). The litigation psychologist can
also explain to witnesses the ways in which opposing counsel attempts to
exploit the witnesses’ reliance on “workplace brain.” And simply telling the
witness to “listen better” or “be aware” is not enough; the witness requires
training on a different way to think and process information that can only be
provided by a trained psychologist.
The second psychological error
witnesses make is emotional. This error involves the witness becoming
defensive, angry, confused, nervous, etc. This type of error often occurs when
opposing counsel brings up a “threat fact” or attempts to play “head games”
with a witness. A “threat fact,” commonly referred to as a “bad fact,” is one
of the primary claims being made by the opposing party that justifies their
initiation of the lawsuit. It may be an act or an omission that the client allegedly
engaged in that brought about the lawsuit. At its core, a “threat fact” causes
witnesses to become uncomfortable and leads them to believe that it is
something that they need to fix by trying to justify their actions. However,
attempting to do this often makes things worse because they appear defensive or
argumentative. A clinically trained litigation psychologist can work with
witnesses to explain the psychological underpinnings of what is occurring and
how to remedy them.
As it relates to “head games,” opposing
counsel will often attempt to disrupt witnesses’ cognition by engaging in
behaviors such as, asking repeated questions, responding sarcastically to
witnesses’ responses, acting confused in an attempt to get witnesses to provide
more information, and becoming upset with witnesses to get them to acquiesce to
the attorneys’ assertions. Providing the skills necessary to overcome these
head games is something that is often outside of the skill set of attorneys.
However, qualified litigation psychologists are well trained in providing
witnesses with the required skills necessary to avoid falling into theses
traps.
The third psychological error witnesses
make is behavioral. With many depositions being videotaped, the mannerisms and
tone that witnesses use in response to questions has become increasingly
important. As Albert Mehrabian famously published in his 1971 book, Silent
Messages, only 7% of a speaker’s credibility assessment was related to the
actual spoken words—the remaining 93% was attributed to the speaker’s body
language (55%) and his or her tone of voice (38%). The arena of nonverbal
communications is something that attorneys are not trained on and often do not attend
to during deposition preparation. This is yet another area where a litigation
psychologist’s training is crucial.
The final error witnesses make is strategic.
This may include misremembering case facts, mixing up case facts, or not being
familiar with case documents. This is an area where the attorney must take the
lead. We believe that the inclusion of a litigation psychologist is a
partnership with counsel, not a replacement for their critical legal skills and
experience. The goal for involving a litigation psychologist should be to
assist attorneys and their clients in strengthening their case.
We have found that utilizing this team
mentality has been highly successful in helping attorneys and clients improve
their cases. For example, Mike Martin of Graves and King recently told us, “The
manner in which you were able to put our very nervous witness at ease with the
process, as well as your patience (and diligence) in working with him on
appropriately responding to the difficult and often confusing concept questions
of ‘safety’ was invaluable. I cannot overstate how much of a difference your
sessions made in the overall preparation.” Mr. Martin has been practicing law
for 27 years and is a partner at his law firm. Therefore, our involvement in
preparing the witness had little to do with his ability or experience as an
attorney, it was more about complementing his legal skills with psychological
ones. Our clients would not have it any other way.