The hidden costs of "traditional" witness preparation - part 3
The ten commandments of witness preparation
In the first part of this topic, we discussed the gaps in “traditional” witness preparation and in the second part, we highlighted the costs associated with inadequate witness preparation. In the final part of this series, we cover the ten commandments of witness preparation and training.
The Ten Commandments
While the requisite skills for attaining high levels of credibility require a great deal of explanation to put them into actual practice effectively, they can, to a substantial degree, be summarized succinctly in a general fashion. First, it is important to review a few basic axioms of jury psychology in order to improve witness performance.
Jurors are desperate to understand, because they are trying to please the judge and do their civic duty. Therefore, they expect a witness to be a “clear window” to the truth. They do not appreciate embellishments, delays, and tricks of any kind. Moreover, they want to go home. This means they want questions answered concisely and directly – as does the judge.
Jurors want to be led to a comprehensive understanding as quickly as possible with a minimum of cognitive discomfort. While many “non-answers” occur because a witness is trying to be clever, more commonly they occur because the witness is thinking about potential responses when the question is being asked. In other words, witnesses inadvertently impede their own attention and concentration levels by trying to listen and think simultaneously. From a neurocognitive standpoint, the brain is forced to split the vital resources necessary to listen carefully and respond appropriately, which leads to poor listening skills and careless mistakes in responses.
For example, talking on a mobile phone while driving is dangerous not because the driver is looking away from the road, but more because the neural pathways required for cell phone usage are the same ones required to make judicious and prudent safety decisions while driving a car. In essence, cell phone use “competes” with the same brain functions that are needed for driving. In the same way, the most salient problem encountered with most witnesses is a failure to adequately listen to the question, and the primary cause of this problem is that the witness is using the neural pathways needed for listening to the question in pursuance of some other goal – generally, a goal connected with formulating a response, outsmarting the interrogator, or some other motives unconnected with the simple task of listening to the question.
Therefore, these considerations lead to three commandments:
1. Thou shalt listen to the question, forsaking all other thoughts at this juncture;
2. Thou shalt answer only the question that has been asked and only after that question has been completed; and
3. Thou shalt meet the jury where they are and meet their psychological needs first (trust, likability, honesty, etc.).
The judge and the jury are aligned in the sense that both want to get the case finished in a timely manner. Therefore, the “no-nonsense” rule of directness in responses reigns supreme. At the same time, however, jurors do react as humans and like things that other people like. A sound piece of advice, therefore, is to tell potential witnesses to decide in advance that they like the jury and that they care that the jurors understand. Moreover, there is a double standard in jury psychology: Attorneys are “allowed” to become histrionic, aggressive, and combative – witnesses, however, do not enjoy this luxury. Thus, the following commandments also come into play:
4. Thou shalt not get into arguments, become sarcastic, or show anger or frustration of any kind;
5. Thou shalt care about the jury and care whether they understand.
6. Thou shalt be professional, confident and friendly at all times, both verbally and nonverbally.
While a comprehensive overview of effective nonverbal behavior (facial expressions, vocal tone, eye contact, posture, etc.) is beyond the scope of the present treatise, it is noted that many of the most optimal nonverbal behaviors come into play naturally and effortlessly when the witness fully adopts the prior admonitions. For example, one question that is frequently asked by witnesses is “How often should I look at the jury?” One answer to this question is that, if the witness truly cares that the jury understands, them manner and extent to which the witness looks at the jury will flow naturally, as he or she engages in explanations or answers any questions that require more than a few words. This works far better than a forced, robotic back and forth head movement arising from a conscious decision to look at the jury with each and every response, not matter how short.
One colleague remarked that “the problem with most witnesses is that they forget who they are and become someone else on the witness stand.” In response to the unnatural environment that is litigation, many witnesses “morph into something else” by means of the unnatural responses that are a result of this unnatural environment. Accordingly, a vital part of witness training is to ensure that the witness maintains his or her own innate characteristics that create affinity among others, making a special effort to preserve natural reactions that are charismatic, endearing and positive. The following commandments therefore are applicable:
7. Thou shalt not memorize or rehearse your testimony;
8. Thou shalt testify naturally, only according to your best current recollection.
Holding one’s own, consistency, and coherency are of course key elements in the need for a witness to “cash the checks” written by the lawyer in opening. Establishment of a thematic structure that is invariant and reliable regardless of the pressure being exerted in a hostile cross examination is essential to a solid impression of credibility. This “thematic structure” is intended to mean essentially a set of lynchpin, cornerstone, or anchoring concepts that unify, integrate, and summarize a witness’ essential position. Deriving and confirming the substantive content of these concepts requires the knowledge of what is in the case evidence, what the core theory of the case is, and other factors. These considerations lead to the final commandments:
9. Thou shalt do thy homework;
10. Thou shalt know thine rights.
The “rights” of a witness pertain to various entitlements or privileges – for example the witness needs to learn how to protect his testimony from becoming twisted, distorted, mischaracterized, and even interrupted – as well as the requirements that the witness know what he or she is allowed to do in certain situations – like refusing to answer a question without seeing a supporting document, if necessary. While exemplars are too numerous to list exhaustively at present, the final commandments are, in many instances, the most critical of all.
Some admonishments are applicable to some environments(e.g., in depositions, do not volunteer information) but not others (in the courtroom, sometimes strategically beneficial information needs to be introduced by a witness or otherwise “inserted” to combat a tough cross). Moreover, there are other aspects of witness training that should not be considered as general as a commandment per se, since they are conditional in nature. For example, while witnesses are warned never to get angry, in some instances a “touch of indignance” maybe just the ticket to add a necessary dimension of credibility to a certain response.
While the awareness of the key tactical value of witness testimony
is obviously not a new development, the continued
appearance of witness performance that is sadly lacking in
credibility points to the need for an increased understanding of the
“status quo” witness preparation procedures. Two principal deficiencies most commonly
observed in witness preparation
as typically implemented are: 1) the omission of structured
practice using video feedback, with
the recognition that repeated sessions
are often required; and, 2) the erroneous assumption
that a legal team can effectively incorporate psychological
principles of nonverbal communication into witness preparation.
Simple economic analyses of the detrimental impact of substandard witness performance on exposure point to the obvious conclusion that witness training by experienced psychologists can be extremely cost effective. The chief impediment to the use of psychologists in witness training is the apparent belief that incorporation of such expertise within the legal team will end up costing more, and in the short term, that analysis is correct. However, in the longer term, the decision not to use such expertise frequently has far more expensive results, once mediation, settlement, and jury awards have been taken into account.
The Role of Cognitive Fatigue on Witness Performance