The 3 Most Common, and Avoidable, Witness Mistakes
There are three very common, and fully preventable, blunders that witnesses make during testimony: volunteering information, guessing, and not listening or thinking effectively. Let's take each in turn.
1. VOLUNTEERING INFORMATION
Volunteering information occurs when the scope of a witness' answer exceeds the scope of a question from opposing counsel. This common mistake occurs for three reasons. First, witnesses who are anxious and unfamiliar with the legal environment tend to fall back on their work and social communication skills to help them "survive" the testimony. At work, home or with friends, it is perceived as friendly, helpful and efficient when someone offers extra information following a direct question. Therefore, novice witnesses inadvertently volunteer excessive information, thinking that it will be helpful, unknowingly causing tremendous potential damage. Second, many witnesses purposely try to anticipate the next question or questions, in an effort to bring the testimony to a close more quickly. These individuals erroneously conclude, "The more I say, the faster this uncomfortable process will be over with." Nothing could be further from the truth, as an opposing counsel will actually question a "chatty Cathy" witness longer than a witness who volunteers less information. Third, witnesses experience an intense, internal urge to explain away answers to simple, direct questions. They feel that if they don't, they are letting down the team and hurting the case. The classic, "Yes, that is true, but here is why" type of answer from a witness is particularly damaging, as the unsolicited explanation fuels opposing counsel's attack.
Guessing comes in many forms, and witnesses often take educated guesses instead of stating that they "don't know," "don't remember" or "don't have any personal knowledge of that." Why do witnesses so often opt to guess rather than admit not knowing something? Two reasons: embarrassment and intimidation. Many witnesses feel embarrassed if they can't provide an answer to what is perceived as an important question, and attorneys are experts at creating this powerful emotional reaction. The standard trick is to say to a witness, "You've been an employee at Company X for 15 years and you can't answer my important question? My client has a right to an answer. Let me repeat my question, and let me remind you that you are under oath." At this very point, 99 percent of witnesses take an educated guess, simply because they feel compelled to correct the perception that they don't know. They end up feeling obligated to provide "something," regardless of its accuracy or relevance.
Intimidation is also a powerful tool. Attorneys can raise their voices, increase the pace of questioning and become sarcastic or aggressive towards witnesses and "bully" them into answers. When this occurs, a witness becomes scared, rattled and very uncomfortable. The witness then provides an educated guess in an effort to give the attorney "something" so that he will back off. Regardless of the cause, guessing is a devastating witness blunder, which leaves an attorney and a client vulnerable. Guesses are rarely accurate, and a savvy attorney can use a witness' guesses against him or her, heavily damaging that witness' credibility and believability.
3. NOT LISTENING OR THINKING EFFECTIVELY
In today's high-speed, instant-gratification society, people are now cognitively hard-wired to listen and think simultaneously when communicating with others. In other words, when some one asks a question, the respondent automatically begins to think about his or her response in the middle of the questioner's inquiry, rather than listening to 100 percent of the question, then thinking 100 percent about his or her response. From a neuropsychological standpoint, a respondent is extremely vulnerable to error, as concentration and attention are split between two activities - listening and thinking - instead of dedicated to one cognitive activity. While this pattern is efficient and friendly in the workplace or social settings, it is extremely dangerous in a legal environment.
Listening and thinking simultaneously as a witness results in poor answers because the witness does not hear the question in its entirety. What happens next is that the witness answers: 1) a different question than what was actually asked, which makes the witness appear evasive; 2) a question incorrectly, for example, inadvertently accepting the questioner's language and agreeing with a statement that isn't true; 3) a question that shouldn't be answered in the first place-questions to which an attorney would raise form or foundation objections; or 4) a question beyond the scope of the inquiry, which volunteers information and makes the witness appear defensive.
The most effective way to avoid these easy-to-make, yet potentially devastating, cognitive mistakes is to provide your witness with sophisticated neurocognitive training that helps them recognize these pitfalls and leverage their training to ensure they give testimony that is honest but not damaging to your case.
Preparing the Foreign-Born Witness for Trial