New Tools for Witness Preparation

Prepared By: Susan E. Jones, Ph.D.

The impression a lay or an expert witness makes can have a decisive influence on the outcome of the trial. Verdicts often hinge on jurors' perceptions of key witnesses. Many attorneys have had the frustrating experience of working with a witness who everyone agreed would make an excellent impression on the jury, only to learn after the trial, that the witness was a disaster. He or she either fell apart, or gave testimony as planned, but it did not have the desired impact on the jury. It is not uncommon for a witness to be quite articulate in the comfort of an attorney's conference room, yet fumble painfully when faced with the stress of scrutiny from an audience. Recognizing this, attorneys are no longer relying on guesswork in witness preparation and witness selection. Increasingly, they are turning to social psychologists to obtain accurate appraisals of how potential witnesses will appear to jurors before trial.

Social psychologists have learned that the best assessment of how an individual is likely to behave in a certain situation is to observe him or her under similar circumstances. In terms of evaluating legal witnesses, a true measure of how a witness will do on the stand is best obtained by simulating the pressures and pace of the courtroom. Social scientists have developed an abbreviated mock trial, called a witness test to do just that. A witness test is used to pre-test both lay and expert witnesses. The procedure is relatively simple, and yet, yields a wealth of information.

Six to eight jury-eligible community residents are assembled in either a mock courtroom or conference room. They are given a summary of the case by a moderator, after which, the witness undergoes both direct and cross-examination by two attorneys familiar with the case. Jurors then rate the witness on the three essential components of communicator persuasiveness: competency, trustworthiness, and likeability. They also rate the witness's presentation for its clarity, believability, and persuasiveness. These rating scales are subsequently analyzed by computer, and a profile of the strengths and weaknesses of the witness is produced. Jurors are also provided an opportunity to offer written narrative comments and observations about the witness.

After listening to the testimony and completing the rating forms, jurors are given forty-five minutes to discuss the case. They are instructed to evaluate the witness's testimony and talk about any aspect of his or her presentation they feel is worthy of comment. Their deliberations are video-taped, and the process is observed on a monitor in an adjacent room. Following their deliberations, a member of the trial team enters the deliberation room and pursues discussion of topics raised by jurors concerning the witness's style of presentation and/or elements of his or her testimony.

The knowledge gained through such a procedure is extremely valuable. For example, defense attorneys handling an insurance bad faith case planned to use a young, average-looking male claims manager to testify about company practices. All who had interviewed the company representative agreed that he was a nice, likable fellow, who was certain to have jury appeal. Due to the high stakes involved and the fact that this witness did not have much courtroom experience, the attorneys decided to utilize a witness test. The results were a surprise to everyone. Jurors rated the witness very poorly. Close examination of the rating scales and comments made by jurors during deliberations revealed the problem. While jurors rated the witness positively on measures of trustworthiness and likeability, they found him to be extremely incompetent, giving him negative ratings across the board. They reported that his testimony was unclear and inconsistent. Several jurors commented that he appeared uncertain, nervous and lacked assertiveness. One juror felt his appearance was inconsistent with his job description, commenting that, "He does not look like someone who would hold that type of corporate position." By failing to meet jurors' expectations of demeanor and appearance, the witness lost credibility.

While discouraging at first, these results proved very useful to the trial team. Fortunately, competency can be improved by additional preparation and review. His appearance and demeanor could be enhanced to more closely fit the expectations of what jurors think a responsible, competent Manager should look like. In this case, the problem areas were correctable. Overall, witnesses who rate poorly on competency and/or likeability can be assisted to enhance their effectiveness and elicit more positive reactions from jurors.

In contrast, poor ratings on trustworthiness can signal a need to carefully evaluate whether to use a particular witness. This is where the witness test yields crucial trial strategy information. Jurors' evaluation of a witness's trustworthiness is a subjective appraisal which is difficult to impact by witness preparation strategies. A witness who looks and sounds good, but is not perceived as trustworthy or believable is obviously a risky witness. Under such circumstances, the trial team must evaluate whether the witnesses' testimony can be brought out by other witnesses or if a substitute witness should be found. Obviously, in some cases, a substitute witness is not available. However, by knowing ahead of time that a witness who looks good, is, in fact, problematic, the trial team can avoid inadvertently hurting their own case by leaving the witness on the stand too long.

In addition to giving an attorney insight regarding the strengths and weaknesses of a witness, the witness test has a secondary advantage to counsel, that of eliciting cooperation from a difficult witness. Some witnesses heed the advise of counsel less readily. For example, middle and upper management executives, who are accustomed to verbal debate, often approach cross-examination as an opportunity to match wits with opposing counsel. They frequently fail to listen to the trial team's advise about handling cross-examination. The witness test gives the executive an opportunity to listen to jurors discuss his or her testimony. Hearing jurors describe their behavior as arrogant, argumentative and ineffective can be a humbling experience. Such witnesses frequently offer greater cooperation after hearing the feedback of jury-eligible community residents.