Training witnesses with technical backgrounds - part 1
Geeks, eggheads, and nerds - part 1 of 3
Here’s a quiz: Can you identify the source for these famous Nerd lines?
· “Ray, when somebody asks if you’re a god, you say yes!”
· “This is what makes time travel possible: the flux capacitor!”
· “The force is strong with this one.”
· “Hey Yoooou Guys!”
Answers appear at the end of this post. If you were able to correctly identified all four famous Nerd quotes, consider yourself one of the lucky intellectually gifted who are well-versed in Nerdom pop-culture. For those who identified three of the four, get back on the couch and brush up on your 80s movies – you know you’ll love it. Those who scored two or less, consider yourselves blissfully “normal,” but there’s still plenty of time to embrace your inner nerd; however, let’s move on to more serious matters since geeks, eggheads and nerds, particularly when involved in litigation, may generate more horror than humor.
Geeks, Eggheads, Nerds (GENs) – for purposes of this article, we will refer to this group as intellectually gifted but socially awkward individuals whose passionate pursuit of technical interests or esoteric knowledge can eclipse knowledge of, or interest in pop cultural, or social activities – in legal terms – a challenging witness.1 Because of their social awkwardness and interests outside of popular culture, GENs often struggle to communicate clearly with everyday individuals, making them a challenge in depositions or in trial where risks should be minimized. With increasing litigation in the science, technology, and business sectors, GENs are finding themselves more and more frequently in depositions or testifying at trial.2 This article offers suggestions in witness training to maximize the effectiveness and credibility of a GEN’s testimony by addressing cultural shifts, communication, and psychological hurdles faced by GENs, and providing guidance concerning key preparation steps to be taken before a GEN testifies. The inability to properly train GEN witnesses can lead to substantial loss of leverage during discovery and adverse verdicts/large damages at trial.
Cultural Shifts and Shifts in Litigation
"Nerd,", "Geek," "Egghead," all used to be derogatory terms, but those days are long gone. GENs now embrace the labels and wear them as badges of honor belonging to an intellectual group. The cultural shift from socially awkward outsider to highly desirable businessman has resulted from commercial successes by high profile GENs. Steve Jobs, Bill Gates, Michael Dell, Mark Zuckerberg, Elon Musk, the founders of Google and many more have redefined our concept of GENs, proving that they may be the future model of success for our society. With the rise of popular and commercially successful GENs, pop culture's view of the intellectually gifted has also changed. Consider the shift in portrayals of characters for these movies: Revenge of the Nerds and The Goonies in the 80s, Hackers in the 90s, The Matrix trilogy in the 2000s, and the long-running popular television show, The Big Bang Theory - popular culture has officially begun to embrace the intellectually gifted. Even the U.S. government has joined the cultural bandwagon by pushing students' involvement in science, math, and technology (STEM.) Bill Gates' portentous remark seems to ring true, "Don't make fun of geeks because one day you will end up working for one."
As a push occurs with the development and expansion of the sciences, math, and technology path, so too does complex litigation surrounding it, and subsequently the appearances of GENs within related cases (Intellectual Property, Product Liability, Securities, Oil and Gas, Anti-Trust, Architectural Design, Breach of contract, Theft of trade secrets, etc). For attorneys, the good news is that litigation in the sciences and technology sectors is increasing dramatically, but the bad news is that intellectually gifted, but socially deficient GENs will be required to communicate effectively and persuasively during depositions or during trials to “normal” jurors. The more a GEN stumbles, argues, or appears uncomfortable during testimony the more of a target he or she becomes for attorneys and the less credible he or she appears to jurors. Jurors will rely primarily upon their “impressions” of a GEN’s testimony to determine his or her credibility and ultimately will award a favorable or unfavorable verdict based primarily on “impressions.” In any type of case or with either a “fact” or “expert” GEN, proper witness training will teach effective and persuasive social communication skills to ensure an improved deposition and to leave jurors with a positive impression.
Importance of GEN Testimony at Trial
After interviews with thousands of jurors and mock jurors over the years, jurors consistently discuss witness testimony as one of the primary determinants in a favorable or unfavorable verdict. Many jurors base large damage awards on witnesses' "lack of credibility," particularly for corporate witnesses. Jurors or mock jurors recall few factual details about a witness' testimony and instead rely almost solely on their impressions or feelings about the witness' credibility, likability, and overall demeanor. From a juror's perspective, a nervous witness is almost always trying to "hide" something; an arrogant witness is distasteful; a calm witness is credible; and a polite witness is confident.
It’s not surprising that jurors recall few facts about a witness’ testimony. Jurors are neither rational actors objectively weighing information from both sides, nor are they strategic actors, pursuing their own moral or political objectives. Instead, jurors tend to evaluate information and reach a final determination through a communication and psychology based model of decision-making called Sensemaking. As a theory, Sensemaking suggests that in complex situations, such as a courtroom or legal proceeding where multiple outcomes are possible, humans seek to simplify their decision-making process by eliminating variables which conflict with their personal life experiences and values. Under Sensemaking, humans rely on their background and prior experience to manage environmental and factual uncertainty as a result of conflicting, excessive, ambiguous, or undesirable information and without a clear path toward resolution – all common situations within the courtroom. Simply put, jurors take cognitive shortcuts because of information overload and rely on prior experience to make sense of the information.
Instead of jurors acting as a judge would hope, by objectively and rationally evaluating the information provided, jurors “make sense of things by seeing a world on which they have already imposed what they believe.” Witnesses play a key role in jurors’ decision-making process because they are the only actors without a clear agenda in the case and offer information which may assist in the sense making process. GEN witnesses prove particularly important because jurors often become confused by the technical language used by the trial attorneys and judge. In turn, jurors look to the GEN to speak plainly and to help them make sense of the complicated case they are tasked with deciding. As a benefit, many GEN witnesses also initially receive a great deal of respect from jurors because of high levels of education or technical acumen and accomplishments. However, jurors are finicky, and their approval may quickly diminish as they begin to interpret a GEN’s discomfort or as they grow confused by a technical discussion.
Answers to the quiz:
“Ray, when somebody asks if you’re a god, you say yes!” Winston – Ghostbusters
“This is what makes time travel possible: the flux capacitor!” Doc Brown – Back to the Future
“The force is strong with this one.” Darth Vader – Star Wars
“Hey Yoooou Guyyyyys!” Sloth Fratelli – Goonies
The Role of Cognitive Fatigue on Witness Performance