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1. Bill Kanasky, Ph.D. Don’t Shoot the Messenger: Exploring the Economic Impact of In effective Witness Testimony
5. 5 In-House Defense Quarterly n Winter 2010 n 55 tion typically pales in comparison to other discovery and pretrial preparation activi - ties. For that reason, when the messenger is “shot” by the jury, it is rarely the mes - senger’s fault. It is important for attorneys to truly understand the strategic and eco - nomic leverage that can be won or lost with testimony and how that leverage impacts a company’s financial exposure. Inadequate witness preparation, even if unintentional, can also raise ethical considerations related to competent representation, because it can increase litigation exposure. The best strat - egy is to place great emphasis on witness preparation prior to key deposition testi - mony, giving clients strategic leverage early, minimizing vulnerabilities and obviating the “shoot the messenger” syndrome. Retaining an expert who specializes in assessing and developing effective witness communication skills is very wise, as the Ineffective Witness Testimony Â page 21 return on this investment is extraordinary. Many attorneys across the nation, even the ones who consider themselves “old school,” have acknowledged the strategic and eco - nomic benefits of expert consultation for witness preparation. As a veteran trial attor - ney recently stated, “I’d rather spend a few thousand dollars on expert consultation to help prepare my witnesses than risk mil - lions—or even billions—of dollars of my client’s money at deposition or trial.”
4. 4 In-House Defense Quarterly n Winter 2010 n 21 cogent and persuasive manner, a witness will not acquire the skills necessary to be an effective communicator. This results in careless and often devastating mistakes during testimony. The most common and preventable witness blunders include vol - unteering information, guessing and not listening or thinking effectively. Let’s take each in turn. Volunteering Information: Vo l u n t e e r i n g information occurs when the scope of a witness’ answer exceeds the scope of a question from opposing counsel. This com - mon mistake occurs for three reasons. First, witnesses who are anxious and unfa - miliar with the legal environment tend to fall back on their work and social commu - nication skills to help them “survive” the testimony. At work, home or with friends, it is perceived as friendly, helpful and efficient when someone offers extra information fol - lowing a direct question. Therefore, novice witnesses inadvertently volunteer excessive information, thinking that it will be helpful, unknowingly causing tremendous poten - tial damage. Second, many witnesses pur - posely try to anticipate the next question or questions, in an effort to bring the testi - mony to a close more quickly. These indi - viduals erroneously conclude, “The more I say, the faster this uncomfortable process will be over with.” Nothing could be further from the truth, as an opposing counsel will actually question a “chatty Cathy” witness longer than a witness who volunteers less information. Third, witnesses experience an intense, internal urge to explain away answers to simple, direct questions. They feel that if they don’t, they are letting down the team and hurting the case. The classic, “Yes, that is true, but here is why” type of answer from a witness is particularly dam - aging, as the unsolicited explanation fuels opposing counsel’s attack. Guessing: Guessing comes in many forms, and witnesses often take educated guesses instead of stating that they “don’t know,” “don’t remember” or “don’t have any personal knowledge of that.” Why do witnesses so often opt to guess rather than admit not knowing something? Two rea - sons: embarrassment and intimidation. Many witnesses feel embarrassed if they can’t provide an answer to what is perceived as an important question, and attorneys are experts at creating this powerful emotional reaction. The standard trick is to say to a witness, “You’ve been an employee at Com - pany X for 15 years and you can’t answer my important question? My client has a right to an answer. Let me repeat my ques - tion, and let me remind you that you are under oath.” At this very point, 99 percent of witnesses take an educated guess, sim - ply because they feel compelled to correct the perception that they don’t know. They end up feeling obligated to provide “some - thing,” regardless of its accuracy or rele - vance. Intimidation is also a powerful tool. Attorneys can raise their voices, increase the pace of questioning and become sar - castic or aggressive towards witnesses and “bully” them into answers. When this occurs, a witness becomes scared, rattled and very uncomfortable. The witness then provides an educated guess in an effort to give the attorney “something” so that they will back off. Regardless of the cause, guessing is a devastating witness blunder, which leaves an attorney and a client vul - nerable. Guesses are rarely accurate, and a savvy attorney can use a witness’ guesses against him or her, heavily damaging that witness’ credibility and believability. Not Listening or Thinking Effectively: In today’s high-speed, instant- gratification society, people are now cognitively hard- wired to listen and think simultaneously when communicating with others. In other words, when someone asks a question, the respondent automatically begins to think about his or her response in the middle of the questioner’s inquiry, rather than listening to 100 percent of the ques - tion, then thinking 100 percent about his or her response. From a neuropsycholog - ical standpoint, a respondent is extremely vulnerable to error, as concentration and attention are split between two activi - ties—listening and thinking—instead of dedicated to one cognitive activity. While this pattern is efficient and friendly in the workplace or social settings, it is extremely dangerous in a legal environment. Listen - ing and thinking simultaneously as a wit - ness results in poor answers, because the witness does not hear the question in its entirety. What happens next is that the wit - ness answers: • A different question from what was actu - ally asked, which makes the witness appear evasive; • A question incorrectly, for example, inadvertently accepting the questioner’s language and agreeing with a statement that isn’t true; • A question that shouldn’t be answered in the first place—questions to which an attorney would raise form or foundation objections; or • A question beyond the scope of the inquiry, which volunteers informa - tion and makes the witness appear defensive. Regardless of educational attainments or professional achievements, fact wit - nesses have no chance of out- dueling a skilled, veteran questioner with years of trial experience. The only way to level the playing field is to teach a witness how to use his or her cognitive resources most effectively, which means training him or her to listen first, think second and speak third. This form of communication seems awkward to witnesses, because it is vastly different from work and social communi - cation. However, it protects them against attorneys’ tricks and traps, as well as care - less mistakes related to inattention and lack of concentration. Many attorneys struggle to manipulate and intimidate witnesses who listen carefully, think patiently and answer concisely. This is exactly why teach - ing these communication skills to wit - nesses needs to be a top priority early in the litigation plan. Needless to say, quality witness testi - mony, or lack thereof, has a tremendous impact on the outcome of litigation. Despite this, the time, effort and resources dedi - cated to witness assessment and prepara - n Most jurors won’t accept or trust a company until they first accept and trust the company’s fact witnesses. n Ineffective Witness Testimony page 55
3. 3 20 n In-House Defense Quarterly n Winter 2010 Defense s tr ategies n Bill Kanasky, Jr., is a senior litigation consultant with Courtroom Sciences, Inc., a full- service, national litigation consulting firm with offices in Dallas, Washington, D.C., and Chicago. Mr. Kanasky specializes in a full range of jury research services, including the design and implemen - tation of mock trials and focus groups, venue attitude research, posttrial interviewing and wit - ness training focusing on core principles of persuasive communication. Don’t Shoot the Messenger The inherent desire to “shoot the messenger” is a basic human instinct that has survived and evolved over hundreds of years. In ancient times, communications between warring parties were usually deliv - ered by messengers, putting messengers in very precarious, life- threatening situations. In modern usage, the metaphorical expres - sion still connotes negative consequences dished out to a person communicating bad news to others. In litigation, fact witnesses are the “messengers” and jurors’ percep - tion of their credibility, believability and honesty is critical to success in the deliber - ation room. But time and again, attorneys and claims managers want to figuratively “shoot” witnesses when poor deposition and trial testimony increases financial ex - posure and decreases strategic leverage. The path to effective witness testimony starts early in a case and remains impor - tant at all points in the litigation timeline. During discovery, each deposition has an economic value to a client. Strong, effec - tive depositions decrease a client’s financial exposure and costs, while weak, ineffec - tive depositions result in higher payouts on claims during settlement negotiations. Therefore, the deposition setting is a critical battleground with potentially heavy casual - ties for a client—a large check to the enemy. Unfortunately, poor witness performance during depositions is quite common, as many attorneys use actual depositions to evaluate witness’ communication skills, rather than thoroughly assess skills prior to deposition. Some attorneys view it as “just a deposition,” and they less rigorously pre - pare a witness for a deposition compared nesses and use it as a primary factor in deci - sion making during deliberations, keeping a poor witness off the stand is often not an option, or at best, is a risky strategy. In fact, most jurors won’t accept or trust a com - pany until they first accept and trust the company’s fact witnesses. If they don’t ac - cept and trust the fact witnesses, the com - pany doesn’t have a chance in deliberations. Jurors can, will and should shoot the mes - senger if a witness performs poorly on the stand. Today’s jurors do not demand per - fection, but they do demand effective verbal and nonverbal communication skills when a witness testifies. Understandably, many attorneys strug - gle to assess, understand and teach these communication skills adequately, as they usually have no formal training in the two academic disciplines that comprise the backbone of witness effectiveness and jury decision making: psychology and commu - nication science. Assessing and adjusting a witness’s communication style, personality, cognition and behavior are very difficult tasks. For example, there is an enormous difference between telling a witness that • He or she needs to be a “better listener,” vs. teaching better listening skills; • He or she needs to be “more patient” when answering, vs. teaching patient answering; • He or she needs to give “more concise” answers, vs. teaching him or her how to give concise answers. The difficulty of effective witness prep - aration by counsel was highlighted during one recent CLE seminar by a Chicago- based trial attorney who described his lat - est experience: “Last month at trial, my key witness’s testimony was so damaging that I wanted to stand up and throw my legal pad at him in an effort to get him to shut up; then the worst part: I had to face my client and explain why the witness crashed and burned on the stand, despite my prepara - tion efforts the day before.” Whether a deposition or a trial, when witness preparation efforts focus exclu - sively on substance, rather than how a wit - ness will actually convey information in a with a trial. The unfortunate result is that many attorneys learn about the strengths and weaknesses of their witnesses, and of - ten, their cases, during depositions, rather than beforehand. By then, the damage is done, it’s on the record, and a client has in - creased vulnerability and financial expo - sure. During a typical “bad dep,” attorneys often report feeling frustrated and helpless when faced with a witness’s persistent and careless mistakes. Some attorneys resort to the “kick system,” telling a witness, “If I kick you under the table once, you are talk - ing too much; two kicks means you aren’t listening to the questions well enough.” One can only assume that three kicks under the table means that the witness should fake a seizure in an effort to postpone the depo - sition, obtaining much needed additional preparation time. When asked about how poor deposi - tion performance impacts his leverage dur - ing litigation, the director of claims and litigation of a large corporation based in the Southeast commented, “I am sick and tired of opposing attorneys using bad dep - ositions against me during mediation and settlement discussions. I end up paying out more on that case than I should, which needs to stop. I hate surprises. I hate being told that a witness will do ‘just fine,” and then they go bomb the deposition. Those ‘bombs’ end up costing us an extraordi - nary amount of money.” Clearly, poor dep - osition testimony greatly widens the gap between the real and perceived economic value of a case, putting a client in an unfa - vorable position when trying to settle. At trial, no “kick system” exists. Attor - neys and clients can only sit back and col - lectively grind their teeth and wince during poor testimony, as their leverage and money get sucked out of the courtroom. And since jurors highly value the testimony of fact wit - By Bill Kanasky, Jr. Exploring In effective Witness Testimony © 2010 DRI. All rights reserved.
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