Source of article Litigation Strategies.
It’s not enough to review the facts. The fact is your witness can’t listen or learn if they are twisted up inside with worry, fear and misapprehension.
Witness preparation is primarily an educational process. From the very first, give your witness information about the context of testimony, the overview narrative of their testimony, the “job” they have within their testimony,etc. Education and context can relieve much of their concerns, but in many cases it’s not enough.
Clients enter into the threatening world of litigation filled with anxieties and misconceptions about the process. The prospect of testimony under oath can be frightening and stressful. This anxiety and uncertainty alone can impair the preparation process as well as effectiveness during testimony. Dealing with the witness’s subjective reaction is job one for the trial advocate. Before you engage them in dealing with the content of their testimony, spend time with them to discover the concerns, fears and other emotional/subjective reactions that will affect their preparation, expectations, cooperation, and success in learning the skills necessary for successful testimony.
Much of the potential negative emotion arises from perceptions of the litigation process as a dangerous and threatening endeavor, resulting in the witness responding to threat in ineffective and habitual schemes that adversely affect thinking, behavior, and physiological responses. Problem thinking responses include exagerated attention to threat cues, negative images and worrisome thinking, and avoidance of some aspects of anxiety provoking experience such as reviewing documents and paying attention during meetings. Problem behavioral responses include subtle behavioral avoidance (delaying completion of key tasks, skipping appointments, arriving late, etc.) and slowed decision-making . The physical responses can entail excessive muscle tension, sweating, dry mouth, agitation, repetitive movements, rapid breathing, lightheadedness, dry mouth and frantic efforts to escape. Only a minority of witnesses will manifest most or all of these unfortunate reactions, but most witnesses will develop a few or more of these reactions. The interaction of these maladaptive responses leads to a process of spiraling intensification in anxiety, distraction and incompetent testimony. Comprehensive witness preparation seeks to replace these maladaptive reactions with better coping responses that allow for better thinking, quietly confident and cooperative behavior, and a sense of reasonable ease and relaxation.
It’s important that you are patient and non-judgmental with your witness. Help your witness to identify the behaviors, thoughts and fears that are impeding the preparation effort. Encourage them to pay attention to any subtle shift in their stress level and to note times of worrisome thinking, catastrophic imagery, physiological activity, behavioral avoidance, and the external cues that may trigger these responses. Allow them to give voice to their uncertainty and fears and show them that you have the information and experiences available in the preparation process to over come their worries and provide them with better means to handle the issues and concerns. As the witness becomes aware of their stress cues during the preparation process, they are encouraged to practice their coping strategies as early as possible, using newly learned responses.
Working with the problem feeling, thoughts and behaviors from the beginning of witness preparation and replacing them with more adaptive ones creates two benefits. First, because the stress spiral is weaker when it first begins, coping responses have a greater chance of managing the stress and of preventing it from getting worse. Second, each time the stress spiral occurs, its sequence of interacting responses is strengthened in memory. Therefore, early substitution of adaptive responses for maladaptive ones heads off such strengthening and instead reinforces more successful approaches to handling the testimony and the stress. As your witness practices better testimony skills and stress management in response to previously identified internal and external triggers, the triggers lose their threatening meaning and become cues for the use of effective coping and testimony methods. Instead of becoming habituated to stress, they become confident of their ability to cope.
Teach your witness to apply some basic relaxation skills right from the beginning. One very effective and simple procedures is slow, deep, diaphramatic breathing. Another is to have your witness use Progressive Relaxation Techniques that use muscle tensing (to increase awareness) and have them increase the tension for a few moments and then let go. Practice and repetition are the key to success. The repeated exposure to the previously threatening questions, issues and challenges now using the coping and testimony skills will allow your witness to become used to and more relaxed in the stressful situation. The application of relaxation techniques will increase confidence in managing the stress and actually reduce the anticipatory images and fears associated with testimony.
Another useful technique is to give your witness homework. Have them use the relaxation techniques and then imagine a scene where they are confident, alert, responsive and successful during questioning. Frequent rehearsals with the application of relaxation skills to eliminate imagery-induced anxiety cues and worrisome thinking is most helpful. Homework assignments aim at encouraging frequent applications of all of the techniques to increasingly early detections of anxious responding.
Witness preparation is a “whole person” process. In order to prepare your witness to do an effective, credible, likable and competent job during their testimony, you must begin with their fears.