The Defense Attorney's Guide to Successful Trial Testimony

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The outcome of any case is inevitably tied to witness performance. Trial testimony performance from witnesses significantly impacts verdict results and damage awards, making witness preparation a crucial step to ensuring positive outcomes. Yet, traditional preparation strategies do not adequately prepare witnesses, particularly concerning the manipulative reptile questions they will inevitably face. That’s why we’ve gathered the four keys to successful trial testimony here, all in one place.

What makes successful trial testimony?

Successful trial testimony occurs when a witness can avoid pivoting, control the pace of their responses, deliver short, concise answers, and respond appropriately to emotional attacks by the plaintiff's counsel.

Control the Pace 

Witnesses have little control over how trial attorneys will approach their questioning. However, through training, witnesses can learn to control the speed and pacing of their testimony by taking their time to think about the attorneys’ questions and formulate answers. 

Most individuals are cognitively hard-wired to listen and think simultaneously when communicating, which can cause significant problems during a witness’s testimony. The plaintiff's attorney will attempt to rapid-fire questions, hoping that the witness will start rattling off answers and quickly fall into a trap. 

Instead, a witness needs to be patient, listening intently to the full text of the question and taking two to five seconds to formulate a response before answering. Neurocognitive-based witness effectiveness training teaches witnesses how to listen and respond differently during testimony and helps slow down the witness. Listening carefully and slowly responding allows for maximum cognition to deliver the most effective answer.

Avoid Pivoting

When a witness pivots with defensive responses, they can fall into a trap. The plaintiff’s attorney wants the witness to argue because they know the mismatch between an inexperienced witness against a trained trial attorney is never a fair fight. Witnesses appear argumentative, evasive, and defensive when they try to pivot. Pivoting also frequently results in witnesses offering long-winded explanations that provide too much information to opposing counsel. 

Rather than trying to pivot, witnesses need to learn how to extinguish counter-attack opportunities. One way to do this is to simply own up to threatening facts when they are presented, answering with something akin to ‘yes, that’s exactly what I did in that circumstance.’ This can stifle the plaintiff attorney's counter-attack attempts. 

Deliver Short, Concise Answers

Long, complex answers by witnesses may be truthful, but they are likely confusing to a jury. A juror’s average attention span and short-term memory are approximately five seconds. Answers longer than five seconds risk jurors losing or forgetting critical information. Jurors can’t tolerate long, complicated responses, even if they’re truthful. 

However, jurors process more concise answers under five seconds very effectively. Defense attorneys can’t allow witnesses to overwhelm jurors with elaborate responses. Instead, that information must be broken up and spoon-fed to the jury. A witness's answers should be honest, concise, and to the point. When the witness is questioned by their attorney, they should allow the attorney to be in control, asking the right questions, and pulling out information for the jury bit by bit.

Respond Appropriately to Emotional Attacks by Plaintiff's Counsel

In an era of neuropsychological manipulation, plaintiff attorneys often use aggression, humiliation, confusion, or other psychological “threats” to unsettle a witness. Attorneys may pound on the podium, bark questions, or use other tactics to elicit the fight–or–flight response, otherwise known as an amygdala hijack. This can cause a witness's emotions to be triggered, resulting in an emotional witness who may come across as evasive, defensive, or argumentative. The witness may speed up, fail to recognize the significance of the line of questioning, and separate fact from supposition or blunder into one or more major concessions.

Witnesses need to stay calm, maintain their composure, be consistent, and avoid taking the bait to get into an argument to remain effective. Even though an amygdala hijack is an automatic response, a witness can learn to avoid the fight-or-flight reaction and maintain prefrontal cortex processing during testimony through sophisticated neuro-cognitive training. During deposition or trial, it would enable the witness to detect an emotional threat from opposing counsel, calmly identify the threat as an attempt to bait the witness and deliver effective testimony. 

Courtroom Sciences can help defense attorneys achieve superior litigation outcomes by preparing witnesses with a psychology-based witness training program. Our behavioral and cognitive experts deliver sophisticated neuro-cognitive training that prepares witnesses to provide strong, effective testimony when it matters the most. Speak with one of our experts to get started. 

Key Takeaways

●  Witnesses need to be patient, controlling the speed and pacing of the questioning.

●  Witnesses must avoid pivoting and learn how to extinguish counter-attack opportunities. 

●  A witness's answers should be honest, concise, and to the point.  

●  A witness needs to be able to stay calm, maintain their composure, be consistent, and avoid taking the bait to get into an argument.

●  Courtroom Sciences' psychology-based witness training program prepares witnesses to provide strong, effective testimony when it matters the most.

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