When it comes to witness testimony, jury research confirms what many trial lawyers know from experience: the performance of a single witness can profoundly affect the outcome of a case. That means that effectively preparing witnesses is an essential pre-trial task.
Yet a witness’s anxiety can pose a significant obstacle to that work. Anxiety takes a variety of forms. The witness may become angry or defensive. He or she may seem strangely passive, even arrogant. The proverbial “difficult witness” may in fact be coping with a morass of anxieties. So it’s worth considering some sources of witness anxiety, and strategies for dealing with them. Effective witness preparation will address each of these needs.
Power. Whether he acknowledges it or not, the typical witness views his role as being very, very important—and one over which he has almost no control. Witnesses quickly grasp where power lies: in the judge, the jury, the opposing lawyer, and in you as trial counsel. By contrast, they see themselves as being virtually powerless. Caught in this trap, some witnesses undergo “emotional meltdown.”
In preparing your witness, think about how to address this imbalance of power. Highlight things that lie within the witness’s control: the power to use his own words, to ask the examiner for clarification, to review documents, to look at the jury, and so on. Rather than relying on the standard list of clichéd “don’ts” (“Don’t answer a question you don’t understand”) rephrase those instructions in the affirmative, as “do’s” (“Once you understand the question, go ahead and answer it.”). Resist the temptation to “script” the witness with your own words and phrases, thereby reinforcing the message that he is a passive vessel. Instead, let the witness work through his answers. Reserve your fine-tuning for later. Demonstrate for the witness that he has power over—and is responsible for—his own performance.
Parameters: Witnesses commonly feel as if the playing field has no boundaries. They assume they must be ready to answer any question about any aspect of the case. Believing that the entire game depends on them, and that “every ball is in,” creates enormous anxiety.
To the extent possible, equip the witness with clear-cut expectations. Outline the limits of his or her testimony. What is the particular subject matter for which he or she is responsible? If various members of the same organization will testify, how does this witness’s role differ from those of his colleagues? Understanding what he is not responsible for can be a great relief to any witness—and can dramatically boost his confidence.
You can also reduce the witness’s anxiety by putting boundaries between your roles. Some witnesses— high-level decision-makers, people who have had media training, or clients who are extraordinarily “invested” in the case—assume they should not only answer the question, but answer it in a way that advocates a party position. What should be a straightforward answer then sounds like a closing argument. Assure them that that’s your job. If the witness tries to advocate the case, remind him to leave the lawyering to the lawyers.
Practice: Coaches and music teachers have long known that several shorter practice sessions work better than one long one. Likewise, when it comes to witness training, effective practice means spaced practice. Your witness will simply remember more, and perform better, if you distribute your prep sessions over time—for example, three or four sessions of a couple of hours each—than if you to try to do it all in a single day.
Pressure: The actual deposition or trial should not be the witness’s first chance to learn whether or not he can get the job done. Every witness needs an opportunity to grapple with the questions and the tactics that opposing counsel is likely to employ. Make time in your preparations for a substantial mock examination, specifically designed to make the witness uncomfortable—and to force him to take ownership of his testimony.
Praise: Criticism and correction create a witness who is uncertain, worried, and tense—a person who looks like a liar. Done right, praise has the opposite effect.
Doing it right means avoiding “person praise.” Steer clear of generalities. Use the Mom test. If it’s what the witness might hear from Mom, avoid it. (“You’re a good person, and jurors are bound to like you”).
Instead, praise the achievement. “My question asked you to speculate, but you refused to do that: well done.” Or: “You did a good job of politely resisting my insinuation.” When you perceive the witness doing something right, seize the opportunity. Make your praise specific to what the witness has just accomplished.
It is the rare witness who can articulate exactly what he or she needs from witness training. Nevertheless, addressing these implicit needs can greatly reduce a witness’s natural anxieties, and thereby enhance the preparation process.
Jonathan Leach is a shareholder in Trial Lab, LLC, a national trial-consulting firm with headquarters in Dallas. |
