Testing before testifying: keeping your good witness from going bad
Your key witness has just finished their deposition. They were combative, defensive, and unlikeable. Worst of all their testimony was off message and damaging. They did great in the prep sessions and you were sure they would do well in the deposition too. But now your case is in a place you had not counted on. It’s a disaster.
Unexpected testimony can be catastrophic in litigation. Bad depositions can make small cases large. Bad trial testimony can lead to inequitable settlements, baseless awards, and at times, damaging headlines.
Why do good witnesses go bad?
Witnesses go bad when they begin their testimony with unrealistic expectations and discover while under oath that they lack the skills necessary to maintain control under the pressures of real testimony. It is one thing for the witness to do well in preparatory sessions where they are not on the record and can call for a timeout or a do-over; there is no judge, no jury, no opposing counsel, and no sworn oath to maintain. But what happens to the same witness if they simply cannot stand up to opposing counsel? The witness becomes anxious, confused, agitated, and may even outright panic. When stress levels get high enough, it can even trigger the “fight or flight” response, leading the witness to either acquiesce to any assertion (e.g. flight mode) or become openly combative (e.g. fight mode).
Preparation is not training
Good witness testimony takes into consideration the broader context of the case narrative, themes, and key facts and issues. As such, witnesses must be taught about the case before they can practice testifying. There is no replacement for engaging in a thorough case review, discussing the rules of testimony, ensuring the witness understands the case themes, the record, and their talking points, and of course addressing any specific or personal concerns the witness may have.
Witnesses must also practice mock Q&A and receive timely feedback to develop the basic skills needed to testify. A skilled witness is one demonstrates the ability to move beyond recitation and spin control, and can consistently listen closely, consider carefully, and deliver their answer in a manner that conveys confidence and inspires trust.
Sure, they did well in your conference room, but how will they do in the courtroom?
Training is not testing
Once you conclude your witness has learned what they need to know, and has acquired the necessary skills, it remains to be seen whether they can they perform under real pressure, or if they are still at risk for derailing.
Predicting how a witness will do under oath requires testing them under conditions that simulate future performance conditions as realistically as possible. This means conducting a mock examination in a setting which not only looks and feels realistic, but also creates as many of the same demands, expectations, limitations, and pressures as possible.
Many people fear public speaking more than death
There is a public speaking aspect to testifying that is lacking in standard preparation sessions. For a test session to be a realistic simulation, the witness needs to feel the pressure of performing in front of strangers. Counsel can bring in strangers to observe. These observers need not be familiar with the case, nor do they need to provide feedback. What is important is that they not be introduced to the witness, and that their role and purpose for being present remain somewhat a mystery. The less the witness knows of these strangers’ backgrounds and role as observers, the more they will begin to feel a level of performance demand similar to actual testimony.
Witnesses have not built rapport with opposing counsel
In real testimony, the witness is being examined by a stranger. The lack of rapport creates an additional challenge for the witness that goes beyond their experiences answering mock questions from a familiar person. We recommend that counsel arrange for a colleague (preferably one whom the witness does not know) to step in and fulfill the role of examining counsel for the testing phase. As with the unfamiliar observers mentioned above, very little, if any, introduction should be made.
Under oath there are no timeouts or do-overs
Finally, actual testimony carries with it very real limitations and obligations enforced by the court. The witness is under oath to tell the truth and their responses are recorded. The witness cannot ask their own questions, or seek help from their counsel. In the testing session, counsel should set firm ground rules that there are no timeouts to discuss concepts, no note taking or note reading, and the session will be videotaped and the witness will be expected to explain and justify any unexpected answers following the test. In combination, these measures serve to create realistic performance pressures because they instill a desire in the witness to “get it right.”
It is too often a surprise who does well and who collapses under oath. It is our experience that much of the uncertainty surrounding witness testimony both in deposition and on the stand is avoidable.
Witnesses need help acquiring both the knowledge and the skills to be able to testify well, and so there needs to be time spent on preparation and also on skills training. But witnesses also need to have realistic expectations, and there is no substitute for being challenged to perform within as realistic a setting as possible. Yes, it takes time. No, it is not easy. But it will be worth it if afterward the witness says, “I felt like I had seen it all before and knew exactly what to do.”
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