Training witnesses with technical backgrounds - part 3
Geeks, eggheads, and nerds - part 3 of 3
In part 1 of this topic, we introduced the subject of GENs (geeks, eggheads, and nerds) and in part 2 we discussed the challenges faced by GENs in testifying. For the conclusion of this topic, we cover important points to keep in mind in training GENs to testify.
Training GENs to Testify
Preparing and Training GENs
The terms “preparing” and “training” refer to two separate and distinct concepts. Attorneys prepare witnesses by reviewing case facts, deposition details, and explaining the testimonial process. Litigation consultants train witnesses in communication and psychological strategies to enhance the effectiveness and credibility of a witness’ testimony. The two steps are distinct areas--litigation consultants do not have the case facts or vast knowledge of the case to discuss issues with the witness, nor do most attorneys have the communication or psychology background to assess and tailor effective witness training strategies. However, these steps are not necessarily separate, the attorney and litigation consultant should work in concert to train the witness since the attorney will be responsible for assisting in the process (explaining court protocol, asking direct and cross-exam questions, identifying case issues, etc.).
Training involves assessing a witness’ communication and psychological preparation, educating the witness about the court process (time court begins, attire expectations, waiting areas, etc.), instructing the witness about common missteps and effective testimony, practicing direct and cross-exam questions, and actively applying operant training techniques for improvement. The assessment, education, information, and application of skills results in a dramatic reduction in anxiety and greatly enhances the effectiveness of a witness’ testimony.
Attorneys often blend the preparation and training with the simulation of testimony. The testimonial process becomes disjointed, and the witness grows confused and overwhelmed increasing the witness’ anxiety. Tips and information offered by attorneys rarely accounts for a witness’ communication style, psychology, personality, or concerns which may hinder the witness’ improvement.
Communication training involves a wide-ranging and complex assessment in which a consultant evaluates any overt and discrete non-verbals, gauges a witness’ articulation of complex concepts, observes a witness’ natural communication style, assesses implementation of suggested strategies, and tests listening capability. Each GEN will have his or her unique communication pattern and a litigation consultant’s role is not to replace the witness’ style, but rather to teach the witness how to manage personal style to enhance his or her communication. Enhancing a GEN’s communication by learning his or her personal communication style assures the witness is comfortable with their own testimony.
Attorneys are very good about telling and describing effective communication “look sincere,” “don’t fidget,” “don’t say X,” “look at the jury,” but “telling” a witness does not teach him or her how to behave or communicate effectively. Proper training only comes about through practice and effective instruction. No successful batting coach simply told their players how to swing a bat—he or she made them practice swinging a bat to develop the players’ own personal batting style through foundational basics.
Reading a witness’ attitudinal cues, mental outlook, and stressors is a skill developed over time and should be handled delicately to effectively address underlying causes. Typically a litigation consultant assesses a witness for any traits that may create a challenging deposition or traits that jurors may find objectionable such as over-confidence, defensiveness, anger, anxiety, fear, and challenging personalities. These traits may arise during uncomfortable moments of testimony. Addressing the witness’ discomfiture often provokes a discussion about underlying emotional or intellectual concerns related to particular moments in the testimony. This discussion time proves helpful because we encourage witnesses to testify truthfully rather than strategically and this distinction often enables the witness to rework a response using their own words.
Attorneys are time focused and take for granted the time necessary to work through intellectual and emotional issues with witnesses. “That’s not at issue in this case,” or “Try not to think about it,” are common responses when a witness begins showing a desire to discuss emotional issues. Pushing the issues aside only increases a witness’ anxiety, fear, or anger. Worse still, attorneys may have angered their own witnesses, mediating this situation, and explaining the misinterpreted signals renews a witness’ trust in their attorney and repairs the relationship between the two.
We try to divide this into basic education (an overview of and application of skills) and advanced education (simulation of trial testimony.) A basic education consists of refining a GEN’s communication style and personae, providing an understanding of the communication process involved in the deposition or trial testimony, discussing common traps laid by opposing counsel, implementing new skills, practicing education lessons, and applying pressure to the witness through cross-exam. Advanced training includes simulation of trial conditions in a courtroom or representative facility where a witness withstands direct and cross exam in front of mock jurors or role-playing jurors. Jurors share their view of the witness with the litigation consultant who provides the feedback to the attorney and witness. Typically, the witness’ testimony is videotaped and reviewed together with the attorney, consultant, and witness to address areas of improvement and discuss any discomfort the witness may have felt with his or her responses. The process is repeated until the witness has begun showing mastery of education principles, comfort in testimony, and satisfactory responses for mock jurors.
It is worth mentioning that care should be taken when critiquing a witness and when placing a witness under pressure during cross-exam. A witness’ testimony may be exacerbated by too many critiques and/or an overly intimidating cross-exam. Knowing when to critique and when to apply pressure or back off is a delicate balance and should be exercised with caution. Placing the witness under too much or too little pressure may amplify undesirable behavior. Lastly, having a colleague cross the witness may prevent confusion and/or hurt feelings from your witness.
Iconoclastic by nature or by choice, GENs are intellectually gifted outsiders who often misunderstand or underestimate the strategic gamesmanship of a deposition or trial testimony. Witness preparation and training for GENs involves educating and normalization through communication and psychological approaches. While this article has attempted to communicate specific challenges faced by GENs as well as offer guidance to address common problems in preparing a GEN to testify, counsel may encounter compounding or exacerbating situations when dealing with a GEN who is foreign born, experiences severe emotional distress, fears communicating in a public forum, or suffers from communication disorders. Witness training is not a panacea and cannot resolve the entirety of a witness’ challenges, but it does equip the witness to be better prepared and more effective in their communication during depositions or at trial. A successfully trained GEN witness has tangible strategic and economic value by ensuring an effective communication of case themes and a clear discussion of science, technology, or business. Conversely, the inability to properly train GEN witnesses may erode leverage during the discovery process and expose an organization to significant damages at trial if jurors perceive witnesses lack credibility, likeability, or a professional demeanor.
Preventing Nuclear Settlements at Deposition