The Hidden Danger of Repetition During Witness Testimony

CSI - Courtroom Sciences Inc.

A fundamental litigation component is an attorney’s ability to persuade someone to concur with their client’s position. Attorneys are often trying to convince juries and judges. Still, they also need to persuade witnesses, which may occur through some common forms of persuasion, including repetition. Despite these persuasive efforts, effective witnesses can find a way to stay calm, maintain consistency in their responses, and avoid taking the bait to get into an argument. At Courtroom Sciences, our behavioral experts help witnesses thwart plaintiff reptile attacks, preventing them from making errors that could devastate your case. 

How can an attorney know when a witness is "ready" for testimony?

Witnesses who display poor body language and nervousness or succumb to the fight-or-flight response during questioning can easily make errors that can derail your case. Effective witness training is essential to secure composed and prepared witnesses who won’t be baited by opposing counsel. Witnesses are most ready for testimony when they have received neuro-cognitive training that prepares them to provide strong, effective, honest, and concise responses to opposing counsel’s questions.

Training Witnesses How to Avoid The ‘Yes’ Train

The ‘Yes Ladder’ Technique

A common persuasive technique is often colloquially called the ‘yes ladder.’ In this technique, an individual will try to get someone to agree on a minor point first in order to get them to agree with a more significant point later on. Similarly, opposing counsel often throws simple, factual questions at a witness to get them used to saying ‘yes.’ The quick pace, in turn, may speed up their responses, lower their defenses, and then eventually, they fall prey to questions for which the answer should not be ‘yes.’

Building Cognitive Momentum

The ‘Yes Ladder’ concept in psychology is called 'cognitive momentum.’ The questioning attorney needs an affirmative response from the witness. Therefore, they have designed these easy beginning questions to get that yes answer to build the momentum they are looking for. 

Here’s how a witness can fall victim to cognitive momentum:

●  A questioning attorney rattles off 12, 14, or even 20 easy yes questions in a row.

●  The witness gets comfortable with these agreements, agreeing more quickly.

●  The attorney suddenly asks a question where the answer is not necessarily yes.

●  The witness says yes anyway because it's what they've been saying in response to all the prior questions, and the cognitive momentum has already been built.

Witnesses must also be aware that a good attorney or cross-examiner will have their next question ready as soon as the witness stops speaking. They are constantly looking to increase the questioning speed and push the pace of the witness's answers.

Overcoming the Yes Train

Defense attorneys can help witnesses overcome the yes train by training witnesses to force cognition before every question. If a witness has answered yes three times in a row, they should recognize that they are likely being set up. To force cognition, a witness must be patient, taking two to three seconds before answering each question. This time gap protects the witness because it forces them to take the time to fully process each question and not get into the momentum of saying yes and falling into a trap. 

The Danger of Repetitive Negative Stimulus For a Witness

A common phrase most individuals are probably familiar with is ‘persistence pays off.’ Related to the yes train, when a questioning attorney cannot get the desired response, they must resort to another persuasive technique: repetition. In searching for that yes answer, the attorney may repeat the question or ask a similarly worded question, as many as six or more times in a row, hoping to wear down the witness until they finally give an affirmative answer. 

The Impact of Negative Reinforcement

From a social psychology standpoint, this technique aligns with negative reinforcement. Witnesses are repeatedly subjected to the same negative stimuli, in this case, having the same question asked of them repeatedly.

It is likely incredibly uncomfortable for a witness to say, ‘It depends,’ continually. In the face of consistently giving the same answer but being unable to stop the questioning, the untrained brain eventually does something different to make the questions stop. It often provides the questioning attorney with the yes answer they were looking for in the first place. While this does get the questioner to move on to a new or different question, it will probably put the witness back on the yes train, providing damaging answers to questions. 

Dealing with Repetitive Questioning

Plaintiff attorneys know that negative reinforcement is powerful and that a witness’ brain wants to eliminate that persistent negative stimulus. Defense attorneys should prepare their witnesses by leveraging neuro-cognitive training for repetitive questioning to deal with this. Witnesses must also comprehend that they should remain honest and truthful despite any frustration from opposing counsel.

The Importance of Witness Effectiveness Training

At Courtroom Sciences, we know that a slow witness is a much better and safer witness versus a witness that responds more quickly. Our highly experienced litigation consultants can help assist litigation teams through focused witness effectiveness training. These training sessions empower witnesses to avoid cognitive, behavioral, and emotional issues that can lead to damaging testimony.  

Learn more about witness training with Courtroom Sciences.

Key Takeaways

●  Effective witness training can help teach a witness how to slow down and answer carefully to allow for maximum cognition and deliver the most effective answer.

●  Opposing counsel often uses cognitive momentum to get a witness used to saying yes, encouraging them to speed up their responses and eventually falling into a trap. 

●  Negative reinforcement is a powerful tool and opposing counsel will use it through repetitive questioning to get a witness to give them the desired answer. 

●  Effective witnesses can be trained to stay calm, maintain their responses, be consistent, and avoid taking the bait to get into an argument.

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