The hidden costs of "traditional" witness preparation - part 1
The devil is in the details
The scenario of “nervous hoping” that a witness will perform well at deposition or trial has become all too familiar in litigation, with the pervasive sentiment that a certain degree of feeling helpless is an inevitable part of witness testimony. Jokes connected with kicking the deponent under the table or resorting to other surreptitious means to send messages are often humorous on the surface, but in reality, are terrifying at the core.
As a result of thirty years of refinement in witness preparation techniques, this scenario is unnecessary – and unnecessarily costly. Ironically, the expense involved in preventing poor witness performance is dwarfed by the cost of its consequences, and it’s not as though litigation managers are unwilling to take measures to ameliorate the problem – it seems more that, even after thirty years, many are still not quite sure how.
A general counsel of a major bank was recently sweating a multi-million dollar exposure that was entirely the result of a disastrous deposition by the key player in the dispute. When asked how the deposition was prepared, he sighed and pointed to the fact that one of the largest law firms in the country had prepared the witness, and, tossing a stapled bundle of about twelve pages onto the table, stated, “They gave him this to read.” Upon perusal, the document contained standard admonishments such a “Do not volunteer information” and “Answer only the question that was asked.” Reasonable enough, but obviously woefully inadequate–yet no one objected to this training as inadequate before the deposition was taken.
This is not to suggest that lawyers typically prepare witnesses like this, but the fact is that most lawyers are not trained in the subtle nuances of nonverbal communication that govern how impressions of people are made. Moreover, assumptions are made by legal teams in today’s “trial by hurry” atmosphere that do not comport with the realities of how witnesses must be trained in order to ensure a credible demeanor at critical junctures when the rubber hits the road in litigation. In particular, while it appears that most trial teams assume that witness training requires a transfer of knowledge or awareness to the witness, to a greater extent the witness requires an accumulation of skill that can only be instilled by adequate instruction and practice. It is assumed that “sitting down and talking” is enough when usually it is not, any more than “sitting down and talking” would help a mediocre golfer become a good one, or transform a naïve student into a good, safe driver on the road.
Jurors often start with a “presumption of validity” in a case (“If the defendant is here, testifying in court, he/she probably did something wrong”) and when under pressure in a deposition, mannerisms that would otherwise be construed as shyness, nervousness, impatience or simple annoyance are instead interpreted as signs of “guilt.” These mannerisms take on significance as a function of various principles of nonverbal communication and are ultimately connected to deeply engrained, stable temperament characteristics of the witness that require concentrated efforts in order to accomplish effective remediation.
For example, in a 1989 antitrust case in federal court, the plaintiff case opened up with successive videotaped depositions portraying some of the most smug, arrogant witness demeanor one could imagine. The corporate representatives acted hostile, condescending, and generally insouciant while being charged with conspiring to impede the construction of an interstate pipeline. There was nothing the defense could do – as lead defense counsel explained later, “I nearly fell out of my seat.” (The lead defense counsel was watching witnesses of co-defendants that had settled out and over which he had had no control). The jury went on to award $340 million with treble damages, bringing the total award to over $1 billion.
The entire realm of communication is comprised of the totality of means in which a message is conveyed, much of it relating to subjective reactions; affect; tone; mannerisms; and other aspects of nonverbal channels that transmit “hidden messages” (in Nonverbal Communication, [Mehrabian,1972], the author notes that 93% of communication is nonverbal, with only 7% relegated to verbal content). And while most counsel seem to be good judges of when these nonverbal messages are connoting a favorable versus unfavorable image of a witness, the more elusive key is inducing beneficial behavior by a witness, and in particular, making it “stick.”
Moreover, with regard to verbal content – which can be of greater importance in depositions that are not videotaped – there are often psychological barriers in a witness that impede the process of conveying the desired information. Some witnesses “freeze up” and look like a deer in the headlights; others start agreeing with just about anything; some are unable to control their emotions (anger, fear, anxiety, apathy, etc.) and still others speculate, concoct phony scenarios, or just seem unable to carry a coherent thematic position. Many of these problems are rooted in adverse psychological reactions to the testimony setting and can be remedied with the proper training. Others are linked to personality traits or stable temperament characteristics, as noted previously, requiring more intensive efforts for amelioration.
The Role of Cognitive Fatigue on Witness Performance