Source of the following article Persuasive Litigator.
By Dr. Ken Broda-Bahm:
Sometimes greater confidence is the last thing a witness needs. When your fact or expert witness is arrogant, unprepared, or careless about their upcoming testimony, they might need a reality check through a preparation session that puts a little rational fear into them. But in other situations — many other situations, in my experience — fear is the enemy. What you need is a witness who feels comfortable and confident. This can be as important, or more important, than the substance of their testimony. The witness who is able to confidently deliver an answer that is 80 percent good, is probably going to be better than a witness who warily or hesitantly delivers an answer that is 100 percent good. That is because jurors and judges tend to use confidence as a short-cut to their evaluation: Confident witnesses are seen as having true and important things to say.
Building that confidence can be a challenge in today’s uncertain climate. With the pandemic still raging and the economy still suffering, witnesses who are called upon to prepare or to testify in that environment are more likely to be stressed and distracted. I have written recently about the difficulty in focusing and concentrating in times of social crisis or uncertainty, a tendency that can currently be called “COVID-Brain.” The courts have obviously slowed down, but in many quarters, discovery continues, and some trials are still on the calendar. So in this context, I thought I should share a practical post focusing on seven techniques to increase the comfort and confidence of your witness.
1. Build Familiarity
Often what is most terrifying about testimony is the unknown: What will it be like? What will they ask? How will I do? You can answer all of those questions through preparation sessions. It also helps to share details to complete the picture for the witness, letting them know the room they’ll be in, where they will sit, and who else will be there. Ultimately, the more you prepare, the more the novelty will wear off, and the more comfortable the witness will become.
2. Hold More Sessions, and Shorter Sessions
Based on their own work habits, many attorneys are used to grinding it out to get it done. But applying that same philosophy to witness preparation can lead to marathon sessions that can end up sapping the witness’s composure and confidence. When you have a witness who is feeling particularly uneasy about impending testimony, it often helps to have several shorter preparation sessions instead of one longer session. By breaking it up, you reduce the chance that it will be overwhelming, while providing systematic desensitization through small doses of testimony over time.
3. Step Out of ‘Practice Mode’ from Time to Time
To most witnesses, testifying is constrained, formal, and unfamiliar. They have an easier time just speaking, using their own conversational style. While they need to learn to excel within the constraints of testimony, it will help them to relax from time to time by moving out of ‘practice mode.’ Another benefit of speaking conversationally, is that you are able to see your witness’s baseline communication skills. The comfort that they exhibit in natural conversation probably represents the apex of what they will be able to achieve during testimony, so it gives you a target.
4. Talk About Relaxation Strategies
If your witness is tense, then talk with them about how they relax. I recall talking with one witness recently and realized we both use the same patterned breathing exercise (breathe in while counting to four, hold while counting to three, breathe out while counting to four). For other people, consciously trying to lower that heart rate might mean yoga, music, exercise, or simply downtime with family and friends. Ask them, because for some witnesses, it hasn’t occurred to them that they should have a long-term strategy for lowering their own anxiety prior to testimony.
5. Encourage Their Own Words
Attorneys are sometimes tempted to exert counterproductive levels of control over their own witness’s testimony. Sure, you want to let them know when their chosen way of saying something opens up problems. But ‘woodshedding’ the witness with an express or implied, “Here’s what you’ve got to say,” message is a sure way to sap the confidence of most witnesses. They may say it, but if they’re merely trying to toe a line that you are drawing out for them, they’re not going to be confident. The better method is something I call “variation and reinforcement.” Have them provide their own answers in different ways, then give praise when they hit on the most effective way of saying it.
6. Bring in Other Voices
Because you are their attorney, the relationship between you and a party witness can be accompanied by some stress. For both plaintiffs and defendants, their image of you might be closely bound up with the negative associations around the lawsuit itself. For that reason, it is often a good idea to use the witness preparation session as a reason to bring some others into the meeting. You might consider getting a fresh perspective from a colleague, inviting the claims representative, or using an outside litigation consultant. For the witness, just hearing that they’re doing okay from someone else can be very comforting.
7. Give Positive Feedback
If witnesses are doing something that comes across poorly, or that the other side will exploit, then of course they need to know how to correct it. But witnesses also need to know when they’re doing it right. It is the positive reinforcement that builds confidence, almost exclusively. Lawyers, as trained critics, will often focus on the negative, but a good rule of thumb is that, over time, you ought to aim for getting to the point where you can honestly maintain a 2:1 ratio for positive to negative feedback.
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Thanks for reading. I am a litigation consultant (bio here) specializing in mock trial research, witness preparation, jury selection, and case strategy, generally (but not always) in high-value civil cases. If you have a comment, a request for a future topic, or a concern about a current case, contact me now.
Other Posts on Witness Confidence:
- Witnesses: Cultivate (a Little) Overconfidence
- Witness Testimony: Understand the Confidence/Competence Circle
- Witnesses, Don’t Get Too Comfortable