It’s quite common for attorneys to tell their witnesses during prep to “think before you speak”, “listen to the whole question before responding”, “take your time”, “don’t let them get under your skin”, “don’t guess”, and other well-meaning suggestions. And every time witnesses are given this advice, they say “Okay” and then proceed to seemingly ignore these directions time and time again at the deposition. Why? This is not a matter of intelligence, aptitude, or attitude. The problem is that simply telling the witness to do, or avoid doing, these things ignores the hardwiring of the brain, which is what opposing counsel takes advantage of. The only solution is neurocognitive remapping and forcing witnesses to fail during prep.
Witnesses learn best when they fail in a controlled environment. Addressing failures during witness preparation helps defense teams identify and correct problematic behaviors and responses before they appear on the record. Simply giving general advice and familiarizing witnesses with case facts is not enough. Preventing witness failures at deposition requires sophisticated neurocognitive training and behavioral conditioning that allows them to perform under stress.
Induced failure builds stronger witnesses, and defense teams must work with litigation psychology consultants to implement these techniques for effective witness preparation.
Why do well-prepared witnesses fail at depositions?
Prepared witnesses don’t fail due to a lack of knowledge or experience; they do so because of the brain’s natural wiring that is built for survival in stressful situations and has been conditioned to reward rapid response and helpful behavior. Survival responses such as fight, flight, or freeze, or helpful behaviors like oversharing or volunteering information, can damage the defense case and must be addressed and trained out of the witness during prep to avoid falling for plaintiff attorney tricks and traps.
What Is the Goal of Effective Witness Preparation?
Witness prep with law enforcement employees can often be more challenging than the standard witness. Particularly over the last two or three years, Step one in preparing a witness is building a solid foundation of trust and enabling the witness to testify with confidence and poise. Witnesses are required to provide accurate testimony, but there is no requirement to provide more information than is being asked for. Effective witness preparation and training helps the witness become aware of their natural hardwiring, the risks this hardwiring poses, and then trains the witness to avoid falling prey to fight or flight responses or their helpful instincts.
Normal, untrained witness behaviors can affect their credibility. Learned and practiced techniques such as giving precise answers limited to the question posed are characteristics of effective testimony. Before the witness even enters the room, these disciplined practices should become second nature through training to prevent witness failures during deposition.
Why Failure During Preparation Is Essential
If the witness is not pushed to the brink of failure during a prep session, that’s your first clear indicator of a problem. Behavioral conditioning follows an evidence-based principle: improvement occurs only when performance is tested to failure and corrected through repetition.
Why should witnesses fail during preparation?
Controlled failure during preparation reveals problematic reactions and responses in a safe environment. Correcting these habits before live testimony dramatically reduces, if not fully eliminates, the chance of errors during deposition and strengthens witness discipline.
How to Engineer Productive Failure
Preventing witness failures at deposition requires evaluating witness weaknesses during prep, triggering those weaknesses to induce failure, providing real-time feedback on the failure, and then repeating the questioning exercise till the witness is able to respond successfully. Attorneys and litigation psychology consultants must intentionally induce stressors that mimic real deposition conditions through different “failure-oriented” training methods.
Speed and Cognitive Failure
Ask rapid-fire questions to push the witness into matching your pace with their responses. When they answer too quickly, stop and highlight the failure: “You’re driving 55 in a school zone.” Repeat this process until the witness can maintain composure and process answers slowly and deliberately.
Oversharing and Verbose Failure
After asking narrow questions, remain silent. Most witnesses will over-answer or volunteer extra details. Interrupt and point out the boundary breach, then repeat the exercise until answers stay within scope.
Emotional Provocation or Regulation Failure
Alternate between hostile and overly friendly tones. Teach witnesses to identify emotional triggers and return to a calm, neutral state before every question, regardless of tone or perceived hostility.
Safety and “Trap” Prompts or Content Failure
“Safety is your top priority, right?” is a broad and subjective question that may be used to expose absolutist claims. Demonstrate how these claims can backfire and teach the witness to keep to factual, exact answers and to not agree with broad statements and questions.
Set Expectations Early Because Failure Builds Confidence
Witnesses can lose confidence if mistakes are framed as incompetence. Avoid that outcome by educating them upfront: explain that failure is part of the process and evidence of growth. When witnesses understand the “why,” they engage fully and become active participants in their improvement.
Use Operant Conditioning Instead of Criticism
Operant conditioning is a core behavioral psychology principle that uses reinforcement rather than criticism to replace poor habits. The method uses positive and negative consequences to shape behavior. Learning is negatively affected by harsh criticism. Consider every failure as a piece of information and, after giving prompt, detailed comments, ask the witness to try the question again.
Give them explicit praise when they perform correctly, such as, “That was the correct pacing, keep that speed.” Positive reinforcement “programs” the corrected behavior faster than fear of failure.
Recognize Witness Types and Personalize Training
Witnesses typically fall into two behavioral categories: those who are quick to respond and prone to simple mistakes, and those who are long-winded explainers who volunteer unnecessary details. Witnesses must be neurocognitively trained to pause before answering and process each question strategically. Only repeated exposure to pressure and failure can create lasting behavioral change. After each failure, follow these three steps:
1. Identify the trigger.
2. Apply the correction.
3. Repeat until behavior stabilizes.
Prevent Witness Failures with Courtroom Sciences
If your team is serious about preventing witness failures at deposition, preparation must be designed to uncover triggers and failures, not avoid them. Work with witnesses to simulate stress, identify performance breaks, and correct them before deposition. That’s how the defense can convert potential witness risk into control.
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By Courtroom Sciences, based on insights from The Litigation Psychology Podcast, Episode #250 – Your Witness Needs to Fail
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