Witness Report Card: Four “A’s” you DO NOT want them to earn

CSI - Courtroom Sciences Inc.

There are four potent psychological landmines that will damage your witness’s credibility every time: Anxiety, Anger, Arrogance, and Apathy. One or more of these factors routinely results in major headaches for trial attorneys attempting to prepare their witnesses for deposition or trial testimony. The good news: all of these are detectable and fixable.

Let’s take a closer look:

  • Anxiety – By far the top barrier to effective communication, anxiety can conceal a witness’s true character, motivation and credibility. Even worse, the physical and psychological symptoms of anxiety send a message of “I am not prepared, I am scared, I am intimidated, and I have no confidence in my answers.” To achieve the perception of credibility, witnesses need to be confident, assertive, and professional---and anxiety will destroy all three, and thus destroy credibility. Some level of anxiety is normal, and perhaps good, as we want the witness to be “on their toes” during questioning. The Answer: thoroughly evaluate the witness’s anxiety levels and find the SOURCE; often the source of the anxiety is deep-rooted and is completely unrelated to the case.

  • Anger – Many witnesses are pretty ticked off that they have to go through the legal process, and many are furious because they feel that the case has no merits. Angry witnesses are very dangerous, as they can exhibit: Volcanic and random outbursts, a tendency to "jump the gun" in defending oneself, and an overuse of sarcasm. Plaintiff attorneys LOVE angry defense witnesses, as their anger severely impairs their communication skills and subsequently wipes out their credibility. We interview over 5,000 jurors annually and they tell us that: “poise, composure, and professionalism = credibility.” The Answer: give the witness the opportunity to vent and process their anger before their testimony preparation; let them blow off steam, let them heal, and then proceed with preparation.

  • Arrogance – Want to get a jury REALLY mad at you? Have your witness display arrogance…works every single time. This is a major problem with higher level witnesses (i.e., C-level executives, managers, celebrities, physicians, etc). The strategic (and economic) cost of arrogance is very high, as the testimony becomes immediately and permanently poisoned. On paper, these should be the most credible and effective witnesses of all, given the high levels of intelligence and professional achievement involved. The problem is that in the business world, a good dash of arrogance may not only be beneficial to one’s career, it may even be necessary for professional survival. The Answer: carefully remove arrogance (without interrupting confidence/assertiveness) and carefully insert a dose of humility (but only moderate amount).

  • Apathy – So your witness has no passion? No conviction? No motivation? Guess what?—they have no credibility either. Apathy typically occurs because the witness doesn’t care about you, your case, or the consequences. Apathy is particularly problematic with witnesses that are no longer tied to the defense (i.e., former employees). This makes sense, as the witness has to do all of the work, go through the grueling litigation process, put up with all of your phone calls and demands, and then receive no reward in the end. Sounds fun to me, where do I sign up? The Answer: make the process worth their while; create internal and emotional rewards that will be appealing.

Anxiety, anger, arrogance and apathy all negatively impact your witness’s CREDIBILITY at the jury level, even if they are telling the truth! All too often, these factors are ignored, underestimated and given little or no attention in the witness preparation process. In fact, the vast majority of these problems are first detected during the deposition, when everything is on the record and each mistake hurts. The price of detecting and fixing these issues early in your case is far more economical than the costly result of your witness losing their credibility during deposition, or even worse, on the stand.

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