The hidden costs of "traditional" witness preparation - part 2
Part 2 of 3
In part 1 of this topic, we discussed the gaps in “traditional” witness preparation and the hidden messages that jurors look for during witness testimony, including a range of nonverbal behaviors and emotional reactions which create an impression with the jury that may not be consistent with the facts of the case. In the second part of this series, we look at the costs associated with inadequate witness preparation and then what’s missing in traditional witness prep.
In a large class action race discrimination case, in which one of North America’s largest employers was being sued for systematic oppression of African Americans, a White senior manager stated in his deposition that “the ‘N’ word could be considered as a term of endearment.” While one could argue whether this was a central factor in the case settling for over $100 million, more rigorous research frameworks have proven the economic importance of witness credibility to bottom-line dollar results in a much more incontrovertible fashion.
For example, we recently conducted tandem mock trial projects under tightly controlled conditions, in which two different samples of research participants were recruited and constrained to strict equivalence in terms of demographic and attitudinal parameters. However, it had not been planned this way from the start; in fact what had happened was that, in the first project, the testimony of two insurance claims adjusters was found to be so horrendous that it was decided the actual trial could (and likely should be run without them, since they were outside of subpoena range. This prompted the decision to test the effects of leaving their “images” out entirely–in other words, include the same verbal content in the testimony (the identical deposition text, or “Q&A”) but leave out the video, with the faces, voice, tone, and other nonverbal information thereby omitted. The new project created for the second day thus utilized a new but equivalent sample of test respondents, subjected to the exact same claims, responses, evidence, issues and arguments, but the persona of the witness testimony of these two claims adjusters was summarily deleted; that is, the “Q&A” from the depositions was read, but jurors did not get to see the faces, or hear the voices of the witnesses. The damages rendered by juries averaged $190 million on the first day; on the second day, juries of the matched group awarded $2 million with the witnesses’ personas deleted from the equation. In other words, the nonverbal behavior of the claims adjusters accounted for $188 million in differences between the damages awards across the two days.
While the prior case exemplars have involved sums in the hundred million-dollar ranges, for the more typical case, the dollar value of exposure in litigation generally moves up and down with each deposition on a somewhat smaller scale. Each deposition has some non-zero dollar value impacting the expected damages, or exposure connected with the case. Typically, these amounts are in the tens of thousands or hundreds of thousands as each witness provides his or her individual input into the totality of exposure. Examples cited up to this point have been somewhat extreme, but the principles hold on a scale commensurate with the magnitude or dimensions of each case and the severity of its claims.
As experienced by litigation managers – e.g., in-house counsel – the net effect is often a persistent feeling of helplessness from being “nickel and dimed” to death by one substandard deposition after another, case after case, month after month. As just one example, consider the quote from a frustrated General Counsel of a large Southeastern health system: “I am sick and tired of opposing attorneys using bad depositions against me during mediation and settlement discussions; I end up paying out more on that case than I should, which needs to stop. I hate surprises. I hate being told that a witness will do ‘just fine’ and then they go bomb the deposition. These ‘bombs’ end up costing an extraordinary amount of money.”
If this scenario is familiar to the reader, no additional explanation is necessary. If it is not, then it should be considered as a warning as to what can easily occur when deposition training is not given the proper attention as a standard means of preparing for a case.
Most in-house counsel expect their lawyers to be able to train witnesses adequately, but persuasive qualities of witnesses are a complex mixture of psychological variables predicated on nonverbal behavior – areas in which lawyers are simply not qualified to produce optimal results. Even a few minutes of casual observation in court yields the obvious conclusion that what is happening between the witness and the jury during the day’s events is primarily psychological, not legal in nature.
Witness credibility is a psychological issue, and the entire case exposure depends on it. Expecting lawyers to produce maximally effective witness training on their own is not much different than expecting a psychologist to write a convincing Motion for Summary Judgment. However, in the long run, even the need to go outside the trial team for help from an experienced psychologist in this area does not mean that more money will be spent. Ironically, it means less will be spent–if the decision-maker is willing to look past short-term costs and consider the entire picture.
Examination of short term versus long term costs in this domain reveals that the cost of remediating witness credibility problems does not operate on the same dollar scale as case exposure. The costs of effective witness training typically amount to a percentage of a percentage, a minute fraction, of the dollar value that each deposition adds to – or subtracts from – the exposure total.
The Missing Ingredient
While in the early days of trial consulting clients were told that “jurors make up their minds after opening statements,” post-trial juror interviews over the last few decades have proven that this is a gross oversimplification. In fact, if one generalization is to be made, the most accurate one would appear to be that jurors make up their minds during the fact witness testimony. Our compilation of actual juror interviews points to the existence of the “cognitive map” of jury psychology: Jurors start every case in the same way – with basic questions on the human level: Who are these people? (who are the litigants themselves, not the attorneys). Are they trustworthy? Do I like them?Do they seem honest? Are they good people? This is a primitive decision that is made very quickly by jurors using subjective means incorporating a diverse array of nonverbal criteria. But it is a decision that is made based on the witnesses.
The second question in the “cognitive map” is What are their duties and responsibilities? What is it that they did that they should not have done, or what is it that they failed to do that they were obligated to do? The manner in which these two questions are answered tilts the entire psychological playing field for the whole trial.
Witness training, therefore, adjusts the “cognitive map” in a profound manner. Not surprisingly, affecting the outcome of the case in this way requires a substantial amount of intensive effort. As observed previously, most trial teams appear to regard witness training as some variation of “sitting down and talking to the witness” when, in reality, witness training has more in common with teaching your five year old how to ride a bike. Creating the necessary impact to alter the flow of a case through enhancement of witness credibility is not a matter of finding a magic key, or a hidden shortcut. It is a matter of sweat, diligence and hard work. In other words, the key missing element from most trial teams is the systematic implementation of practice. Practice – and in particular, practice with videotape– along with the resolve to do it over and over until the results are right – represents the single most overlooked aspect of witness training as currently implemented by most trial teams. Concerns about discoverability of videotape may often interfere with the necessity of making video recordings of the witness to ensure competent testimony in this manner. Without rendering an opinion in this regard, it is nonetheless emphasized that, regardless of discoverability issues, witnesses are not ready to testify until they have mastered numerous behaviors that resist verbal description (i.e., the behaviors can only be referenced by pointing to video clips). Far too often they are not given the opportunity to practice and deal with such behaviors, either as a result of the “trial by hurry” factor, or concerns about the discoverability of videotape, or both. But most typically the bottom-line reason for poor witness performance is the assumption that “sitting down and talking” is sufficient when in reality the skills that need to be transferred require practice, with video feedback.
Simply stated, many witnesses need to see what they are doing (or not doing) before they can become fully aware of the subtle nuances of nonverbal behavior that can cripple their persona. With these considerations in mind, it may indeed be the case that trial teams should take a second look at the comparative vulnerabilities entailed in discovery of a videotape versus the vulnerabilities connected with poor witness testimony that occur because the witness was not properly trained. Many witnesses simply cannot absorb the severity of their shortcomings without being able to see them. In the final analysis, some difficult decisions may need to be made regarding the relative risks involved with discovery versus those connected with unstable witness performance.
The Role of Cognitive Fatigue on Witness Performance