The critical importance of witness testimony
Research has shown that the performance of witnesses, in depositions and during trial, is the single most important factor in case outcomes. In this 4-part video series, you will learn:
· why and how witness testimony goes bad
· why witnesses are so vulnerable during testimony
· why trial attorneys need help with witness effectiveness training
· how to justify the investment in witness effectiveness training
In part 1 of this witness effectiveness series, Dr. Bill Kanasky explains the four causes behind bad witness testimony.
Providing testimony can be extremely stressful for witnesses.In part 2 of this witness effectiveness series, Bill Kanasky, Ph.D. describes the reasons behind why witnesses are so vulnerable to opposing counsel tricks and traps during deposition and trial testimony.
Preparing witnesses for their testimony is a crucial step to ensure positive outcomes. There is a belief that attorneys can prepare witnesses for testimony, but that preparation is inadequate because it is focused heavily on the case strategy and facts. And the witness's vulnerabilities are much higher in their emotional, cognitive and behavioral responses which require an experienced Ph.D-level litigation psychologist to train on. In part 3 of this witness effectiveness series, Dr. Bill Kanasky explains why attorney-only preparation isn't enough and how attorneys and a trained litigation psychologist can work together to fully prepare a witness for testimony.
Obviously there are costs associated with witness effectiveness training. However, the value of a fully trained witness, who is prepared for a range of neurocognitive attacks by opposing counsel cannot be underestimated. In part 4 of this witness effectiveness series, hear Bill Kanasky, Ph.D. explain how the return on the investment in witness effectiveness training becomes apparent when compared to the significant cost of a poor deposition.
Contact us today to learn more about how our Ph.D.-level litigation consultants use neuroscience and clinical psychology methods to modify human behavior for better outcomes.
Why/how does witness testimony go bad?
Testimony tends to go bad for four very distinct reasons. Number one, cognition. If the witness is not thinking as carefully as they need to, and they're not listening as carefully as they need to, they're going to make natural mistakes. Number two, behaviorally. If the witness is not behaving appropriately, either on video tape or in front of a jury, they're going to lose all credibility. They have to maintain the professionalism, maintain their calm. Three, emotionally. Many witnesses go into fight or flight responses because they feel threatened by a plaintiff attorney and they're either going to run and hide or they're going to try to argue, and that's exactly what the plaintiff attorney wants the witness to do because they'll fully take advantage of them. Finally, fourth strategy. If the witness is not prepared strategically on how to answer these questions when they're attacked, there's zero chance of success.
Why are witness so vulnerable during testimony?
We have something that we call the testimony brain and we train the witness to develop a testimony brain because they don't have one. They're not born with one, and they can't just get one. They have to go to a specialized training program that we provide to end up with a testimony brain, to protect them from the tricks, the traps, the manipulation from plaintiff's counsel. But what everybody does have is what we call the workplace brain. You spend 40, 50, maybe 60 hours at work. You think a certain way, you listen a certain way, you communicate a certain way. The plaintiff attorney knows this, and that's what they take advantage of. They take advantage of our multitasking skills, our speed of communication, our lack of attention. Because of technology, because of cell phones, because of social media, no one thinks before they hit enter, right? In a deposition, you better think before you hit enter because you're stuck with the answer - FOREVER. So we put them through our neurocognitive training program to slow down their cognition, have them process all of the information, and then give the truthful, accurate, effective answer every single time.
Many attorneys think they can handle witness training on their own and what they're meaning is, they can handle the preparation of the witness on the documents, on the exhibits. What attorneys cannot handle, they try to, but they don't do it very well, is they can't handle the emotional witness. The witness that doesn't want to be there, the angry witness, the witness that's scared to death. They don't have any training in psychology to deal with those types of issues. They don't know how to assess a witness's ability to think correctly or to listen correctly or to control their behavior while they're testifying. The best way to do witness preparation is to combine it with psychological-based witness training. That covers all your bases as a trial attorney.
How do I justify the expense of witness effectiveness training?
Clients often ask us, how can I justify spending 10, 20, sometimes $30,000 on preparing witnesses? The simple answer is, if you don't, it's going to cost you so much more down the road. Because the number one way a case gets very, very expensive, it's not my fee, it's the plaintiff attorney refusing to settle. It's the plaintiff attorney jacking up demand because your witnesses blew it. It's the plaintiff attorney going to trial, abusing your witnesses in front of a jury, and then getting a multimillion dollar award. So, multimillion dollar award versus 10, 20, or $30,000, I think that's pretty much a no-brainer.
The Role of Cognitive Fatigue on Witness Performance