Psychology in Litigation:
HOW TO PREPARE EXPERT AND LAY WITNESSES

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

At trial, cases often hinge on jurors' perceptions of key witnesses. The impression a lay or expert witness makes can be a decisive influence in the outcome of a trial; yet, all too often, witnesses are given only cursory help preparing to testify. Frequently, an associate is assigned the task on the eve of trial. Unfortunately, witnesses who fail to fully understand the proceedings, or the significance of each aspect of their testimony, often become nervous and confused--with potentially disastrous consequences.

Witness preparation need not be an overwhelming task. This article describes techniques for witness preparation appropriate for both lay and expert witnesses. It also reviews a new tool attorneys may utilize to systematically evaluate the strengths and weaknesses of the witness called a witness test.

Stages of Witness Preparation

Stage I

Witness preparation for lay witnesses can be isolated into three stages. Stage I involves orienting the witness to the courtroom, including the roles of the courtroom participants and the basic rules of evidence involved in lay testimony.

It is important to provide a prospective witness with a review of the ground rules for cross and direct examination and objections which are likely to be made. Essentially, the attorney should educate the witness so that he or she understands the nature of the proceedings, and is less likely to be startled during direct or cross examination. Such distractions negatively impact a witness, and are needless if adequately addressed prior to trial.

Helping a witness understand the overt and covert reasons for objections allows them to gain confidence in their testimony. When anticipated objections do arise they feel knowledgeable and confident --all significant factors in reducing situational anxiety associated with being "on stage."

It is easy to neglect this orientation stage, as it almost seems trite. But, from the witnesses perspective, it is not. For witnesses who have some familiarity with court proceedings, it is often a refreshing review, and new information, inevitably, is imparted. For those for whom it is completely new, it is helpful and appreciated. Many witnesses, who are unfamiliar with court proceedings are quite embarrassed to admit so, and will not ask the fundamental questions. Thus, it is important that the attorney matter-of-factly, but effectively, review fundamentals of the courtroom.

Stage II

In the second stage, the attention is directed on the content of the witness's testimony. Individuals process information best when it's approached from the global to the specific. By providing an overview, and then attaching the details to the appropriate elements of the outline, a witness is better able to understand the overall nature of their testimony. It is important that the witness has a conceptual understanding of the objectives of their testimony. Merely going over a witness's testimony question-by-question, in the absence of an overall context, results in witnesses who become confused and unable to respond effectively during direct and or cross-examination. By understanding the case themes and how each element of their testimony is related to a theme, witnesses are better able to handle the witness stand.

Stage III

While many lay witnesses may come to understand the nature of the courtroom proceedings, as well as the objectives of their testimony, most are often lost regarding how to communicate effectively in the courtroom. Testifying from the witness stand is a unique experience, unlike most other public speaking situations. Witnesses need guidance in courtroom communication. This is where the video camera serves its most useful role. All too often, witness preparation is conducted without the benefit of video playback. Often suggestions by the attorney are difficult to grasp the first time through. It is one thing to be told to speak slower; it is another to watch oneself speak too rapidly on video tape. The latter is a more powerful demonstration of the problem and a better tool for learning to correct it. We learn much better by seeing and doing, than by merely listening.

There are several things one wants to point out to a witness. Researchers have consistently found that those who communicate using powerful speech are far more effective and more credible than those using powerless speech. Powerless speech is characterized by testimony in which a witness frequently hedges or responds with "I guess," "I suppose," or where there are abundant hesitations. Over-politeness or deference to authority, with comments such as "yes Sir" signal powerless speech. Those who engage in powerful speech do not exhibit such behaviors. The video allows the attorney to point out instances of these behaviors to help a witness correct them.

The choice of words a witness uses is important. For example, depending upon whether the witness is testifying for the plaintiff or the defense, the witness can create entirely different images for the same event. In a case involving the release of formaldehyde from a rail car that blanketed a small rural town, defense counsel found it was almost automatic for their own witnesses to refer to the incident as a "toxic spill," having adopted this language from the massive press surrounding the grounding of the Exxon Valdez. Counsel for defense needed to assist witnesses in understanding the importance of the choice of words and help the witness reflect on what they truly meant to convey. Adjectives such as an "incident," "a release" or a "venting," rather than a "toxic spill," seemed more in keeping with their witnesses intentions. The amount of damages awarded by mock jurors differed significantly based on the nature of the references to the incident.

Witnesses need to be cautioned not to adopt opposing counsel's language inadvertently during cross-examination. Opposing counsel will often suggest characterizations of events, and draw the witness into adopting the characterization. For example, in the incident above, when opposing counsel asked, "During the four hours that the tank car was spewing the formaldehyde, what steps were being taken to plan evacuations?" A witness who begins a response by addressing the evacuation procedures, implicitly agrees with the characterization of the event as "spewing." Rather, the witness should restate the question, such as, "At the time that the venting was first observed, no evacuation procedures were under consideration, as venting is a frequent and normal event."

It is often helpful to suggest to a witness that their task is similar to a teacher’s. By conceptualizing their role as an educator a witness can take more control of their testimony. Moreover, they often find that viewing themselves as teachers makes juror note-taking less distracting, and the absence of juror eye-contact, less disconcerting. Many witnesses report that when jurors are not looking at them, they worry that their testimony is not being well-received. Witnesses must be taught that jurors’ attention often fades in and out and they don't glance steadily at a witness. Teachers are familiar with such audience practices, and usually does not personalize them.

Whenever possible, a witness should be assisted in characterizing their testimony using numerical references. When asked, "Were there reasons for your denial of the plaintiff's claim?", rather than merely responding "yes," and reciting a reason to which the attorney must then ask, "Are there any other reasons..?", it is far more effective for the witness to say "yes, there were three primary reasons," and then elaborate. Numerical references invite jurors to take notes. Furthermore, this technique aids the witness in organizing his/her own testimony, and prevents their failing to mention a significant point.

Of course, the attorney may not tell a witness what to say, but it is the attorney's role to help the witness learn to communicate effectively. Therefore, it is helpful to show a witness a specific portion of their videotaped testimony that was weak, and then immediately assist them to improve that segment. We learn better by observing our mistakes and practicing the correct response. However, merely pointing to a segment in the video tape and saying 'don't do that when you're really on the witness stand,' guarantees that the behavior will be repeated. Rather, take time to re-formulate the question and allow them to answer it again.

This raises a concern many attorneys share in witness preparation: Won't too much preparation make a witness look stilted and rehearsed? In fact, the opposite is true. Witnesses who are effectively prepared report feeling greater confidence in their testimony, and confidence leads to increased ratings of credibility. Several years ago, researchers compared the persuasiveness of two groups of eye witnesses to a staged theft. One group received a seven-minute briefing on how to handle cross-examination. The other group received no preparation. Both groups were then cross-examined in separate trials. Jurors rated the eyewitnesses for confidence and credibility. The prepared witnesses, who reported they felt more confident, in fact, appeared more confident according to jurors' ratings of them. Moreover, their testimony, of the same incident viewed by the unprepared group, resulted in convictions 50.5% of the time. The conviction rate for the trials in which the eyewitnesses had received no preparation, was 30.5%. Witnesses' self reports of confidence were correlated with jurors' impressions of them as confident witnesses, and their confidence was obviously effective in enhancing their credibility on the stand.