Source of article The Jury Room - Keene Trial Consulting.

Every once in a while we run across a tip in the social sciences research that is just begging to be used in litigation advocacy. A while back we found a UK researcher named Tim Perfect who told us a very simple thing: “When you want to increase both volume and accuracy in witness recall, don’t have them tell a story backwards. Just have them close their eyes! It really does increase the number of accurate observations recalled.” We liked his work so much we asked him to write up his research for publication in The Jury Expert (where many others have liked it as well!).

And today, we have another wonderful tidbit of the same sort for you. Anyone who has prepared witnesses for courtroom testimony or deposition knows it can be an anxiety-provoking experience. Witnesses who are anxious will fidget, squint, lick their lips, contort their bodies, rock back and forth in their chairs, or stick their fist in their mouths as we saw in one very unfortunate mock trial example. Jurors take note of these things and, often, come to the conclusion that the witness is lying as opposed to showing anxiety. So for all those who have tried to calm an anxious witness down, here’s an easy (and free) strategy that requires no specialized fMRI equipment or high-tech accoutrements.

Just use pronouns.

How? It is a simple strategy and (in truth) one both of us have used in previous professional lives helping psychotherapy clients manage their own anxieties in stressful situations. What you want is to help the person see themselves testifying as though they were watching a movie of themselves and not projecting their anxieties as they imagine themselves testifying.

The research on which we base this recommendation was summarized at ScienceDaily where the authors said this:

Before any potentially stressful event, people often engage in self-talk, an internal dialogue meant to moderate anxiety.

This kind of self-reflection is common, according to Mark Seery, a University at Buffalo psychologist whose new study, which applied cardiovascular measures to test participants’ reactions while giving a speech, suggests that taking a “distanced perspective,” or seeing ourselves as though we were an outside observer, leads to a more confident and positive response to upcoming stressors than seeing the experience through our own eyes. The findings, published in the Journal of Experimental Social Psychology [snip] illustrate how the strategic use of language in the face of tension helps people feel more confident.

It’s something sports psychologists do routinely—they help athletes visualize themselves executing an action successfully. When we did this with psychotherapy clients, we often asked them to observe themselves from a perspective well above the situation in which they found themselves. They could be like a fly on the wall (or see themselves sitting in a chair oddly positioned up by the ceiling) and describe what was happening to “that person” (who was actually them) in the interaction. Then they could play out (like in a movie) how they wanted “that person” to behave and practice doing it that way.

This is a strategy easily generalizable for use in the preparation of witnesses for courtroom or deposition testimony. For example, you might ask the person what they imagine as they consider testifying in court (or deposition) and (if they are anxious about it) they will probably say something like this:

The idea of all those people staring at me makes me short of breath and sweaty feeling. It just really scares me.

You want them to change that self-talk using pronouns to something like this:

When Doug thinks about testifying, Doug is anxious about all the people watching him.

And then, over time and witness preparation, to something like this:

When Doug testifies, the goal he focuses on is being calm, listening carefully, and accurately telling his truth. Doug understands the importance of communicating clearly to the jury and believes he can do that effectively while still being truthful.

You may be concerned that this sort of “self-distancing” strategy would lead to a witness who seems disconnected from their testimony. According to the researchers, you needn’t be concerned. Again, here is an excerpt from the summary over at ScienceDaily:

“We found that self-distancing did not lead to lower task engagement, which means there was no evidence that they cared less about giving a good speech. Instead, self-distancing led to greater challenge than self-immersion, which suggests people felt more confident after self-distancing.”

Seery points out that some of the most important moments in life involve goal pursuit, but these situations can be anxiety provoking or even overwhelming. “Self-distancing may promote approaching them with confidence and experiencing them with challenge rather than threat.”

From a litigation advocacy perspective, this is exactly where you want a witness to be as they consider testifying. You want them to see it as a challenge rather than a threat. Using pronouns to help them distance from the anxiety while rising to the challenge of testifying may help the anxious witness bridge that transition.

Streamer, L Seery, MD Kondrak, CL Lamarche, VM Salesman, TL 2017. Not I, but she: The beneficial effects of self-distancing on challenge/threat cardiovascular responses. Journal of Experimental Social Psychology, 70, 235-241.