Guest Contributor: Emily McDonald, PhD
Whether giving a deposition or testifying at trial, being a witness is not an easy job. Add nerves, inaccurate expectations and a unique and intimidating environment, and the thought of testifying is enough to ignite a swarm of angry butterflies in the stomach of the most even-tempered and confident CEO. I’m no miracle worker and I can’t tell you with a straight face that I can take a “0” witness to a “10,” but when a “2” can improve to a “6” or “7,” the time investment and energy to move him to a better witness may be outcome determinative to winning your case. Witness preparation is an integral part of preparing for the deposition as well as the trial. Preparing your witness to communicate effectively cannot be understated or started too early in the litigation process.
In my practice I typically see three general types of witnesses. Every person is unique, but I can typically categorize a witness in one of three general categories:
1) Anxiety ridden
2) Story-teller
3) Super Star
The Anxiety Ridden Witness
The anxiety-ridden witness often times is a person who has information relevant to the case but no proverbial direct dog in the fight. The anxiety-ridden witness may be an introverted person uncomfortable speaking in front of large groups, fearful her job rests on her performance during the deposition or at trial, or baffled as to why he was been called to testify at all. The danger of an ill prepared anxiety-ridden witness is that the jury will mistake anxiety, nerves, or a failing memory for non-responsiveness or evasiveness. This witness will benefit from training that first concentrates on mental state before substantive testimony is discussed and practiced.
The Story-Teller
This witness can be a challenge for counsel during trial preparation because of his intense desire to tell his version of the story. The story-teller often does have a dog in the fight and has waited for months, maybe years, for the opportunity to set the record straight. This witness may have prepared, analyzed and strategized in his own mind about what it will be like to take the witness stand or tell his story to opposing counsel during the deposition. The danger of a poorly prepared story-teller is that the jury will perceive him to have an agenda or be delivering prepared or programmed responses. This comes across as evasive even deceptive. This witness will benefit from witness communication training teaching him how to talk to his jury audience so that they will be able to listen, remember, and retain his story.
The Super Star
The super star witness is often a label assumed by a confident upper level executive, CEO or otherwise powerful businessperson. The super star is used to giving directives and having those directives acted upon without question. Being powerful and successful far from guarantees one to be a super star witness in the eyes of the jury. Preparing this witness can be difficult due to a scheduling challenges or the witness’ overconfidence. Failure to adequately prepare the superstar witness may result in the jury audience perceiving the witness to be arrogant, evasive, or dishonest. This witness will benefit from communication training that focuses on defining the role of the witness and what she can legitimately expect to accomplish on the witness stand.
Every person is unique and each case presents a novel opportunity to prepare witness to communicate effectively. Whatever a witness’ type, witness training followed by practice, practice, practice, has shown time and again to improve the ability of the witness to connect with the jury. At the end of the day, the jury needs to perceive the witness is telling the truth and that the witness believes what he or she is telling them.
July 5, 2012
Witness Preparation