Survival of the fittest witness
Every day across the country, fact witnesses of all stripes show up for depositions or trial with a singular focus: survival. All fact witnesses just want to get through the process. Get it over with. Let me be done.
For most fact witnesses, the concept of being deposed or having to testify at trial is unnerving at best and paralyzing at worst. Sometimes those in the legal profession forget how nerve wracking and stressful the idea of giving testimony under oath can be, especially for someone who has never done it or hasn’t done it very often. Fact witnesses are nervous about what they are going to be asked and don’t want to say anything wrong that will get them, or their company, into trouble.
Witnesses often spend an inordinate amount of time thinking about what they will wear and how they look. Researchers call this the Spotlight Effect. They worry about sweating too much or that they may revert to that fingernail biting habit they had back in high school. There are so many things going through the mind of a witness that have nothing to do with the case. Not that they aren’t thinking about the case - they are – but they can’t help but focus on the superficial things that each of us as humans get easily distracted by (and often put too much weight on.) Daily we see and hear examples of witnesses who are focused on the wrong things: the detail-oriented gentleman who stayed up all night reviewing documents for the case, but shows up the next morning tired and sluggish; the self-conscious woman who put on too much makeup; the corporate executive who thinks the entire process is a waste of time and sits at his deposition looking annoyed all day; the technologically unsavvy deponent who sits with their back to the window on their Zoom deposition.
Keys to the witness mindset
There are three important points to keep in mind when thinking about witnesses, whether at deposition or trial:
1. The day of their testimony is, to them, one of the biggest days of their life. For some, it’s bigger than the day they graduated or their wedding day. It’s scary. They don’t know what to expect and they don’t want to do or say anything wrong.
2. Focusing on what they are going to say is only part of the preparation. Most witnesses understand that they need to be honest and transparent in their testimony. But what most witnesses – and attorneys - don’t understand or realize is how important how they say what they say is.
3. Many witnesses are suspicious and do not trust the trial team or the process. Their trust must be earned.
Investing the time to help a witness become a better presenter of the information is critical to their performance, their mindset, and in securing their trust. Helping a witness understand that the nonverbal signals they are giving off can – and do – say more about them and their credibility than the color of their necktie or their familiarity with the documents and exhibits. Jurors or triers of fact who see a nervous or anxious witness don’t look at someone up on the witness stand and think to themselves, “If I was up there, I’d be nervous too.” Instead they think, “They look nervous; I wonder what they are hiding.” Witnesses who tell the truth 100% of the time may not be believed if they aren’t perceived as being credible. And credibility starts with those nonverbal cues and extends to the behavioral and emotional reactions and responses given during testimony.
How to prepare a witness
The biggest benefit you can provide any witness that is being deposed or being prepped for trial is witness effectiveness training that focuses on their cognitive, behavioral and emotional responses to any questioning. So, what does that entail?
Cognition is about active listening. If a witness does not listen as carefully as they need to and they don't think and process as carefully as they need to, they're going to make cognitive errors. These are naturally occurring errors that happen because the witness isn’t hearing the whole question and then processing the whole question. They may miss a keyword in that question that changes the entire question. And they can end up either answering a different question than was asked, which leaves them vulnerable, or they inadvertently agree with something the questioner says that's not always true. Witnesses must be trained to use their brains very differently than they are used to. And this requires a sophisticated level of training built on clinical psychology.
Behavioral responses are those aspects of our conduct that give signals to anyone who is observing. And these signals can be interpreted negatively or positively depending on what these behaviors are. If a witness looks angry or frustrated or irritated, anyone observing will interpret that in a negative manner. Witnesses must be trained to be aware of their behaviors and to maintain their professionalism, poise and positive body language. These behavioral characteristics have a direct impact on the witnesses’ credibility with jurors.
It goes without saying that emotion is a powerful state of mind that can have a significant impact on our ability to listen, behave, and react. Witnesses who are provoked during a deposition or at trial, and are not trained to respond with composure, can have their credibility damaged. When witnesses are baited into a fight or flight response, they're either going to run and hide, which does not look good for their credibility, or they may try to fight and argue, which looks just as bad. A proper scientific neurocognitive training program can help that witness maintain their poise, not always take the bait, and use the logical part of their brain to respond.
Fact witnesses are under tremendous pressures. Their role as a witness is often above and beyond their day-to-day role and what they are accustomed to doing in their daily jobs. Because the litigation process is a unique situation for them, it requires unique preparation. The stakes are too high to leave their performance to chance. Investing in a witness training program ensures your witnesses not only survive but thrive.
The Role of Cognitive Fatigue on Witness Performance