Three Questions Defense Attorneys Must Answer for Effective Witness Preparation
Updated: Mar 28
The strength and credibility of witnesses in depositions and during trial is a crucial component in case outcomes. As nuclear verdicts become a consistently increasing theme, witness performance remains at the top of the list of causative factors...
Therefore, knowing the magnitude witness performance has on settlement and verdict results, correspondingly effective witness preparation has fundamentally become one of the most essential tasks a trial attorney performs.
In an era of neuropsychological manipulation and plaintiff reptile tactics, witnesses are even more susceptible to experiencing an amygdala hijack or succumbing to the fight-or-flight response during questioning. Thwarted by their own emotions, these witnesses frequently come across as argumentative, defensive, or evasive. Vital to enabling successful witness preparation is the ability to answer three questions: Who is your audience, who is your witness at their core, and how do they feel about this case?
Courtroom Sciences knows that not answering these questions can lead to wasted time, frustration and may lead to devastating outcomes, disproportionately impacting settlement and trial outcomes and resulting in a nuclear verdict. With the outcome of your case closely correlated with effective witness preparation, Courtroom Sciences can help you mitigate the risk via our proven witness training program and science-based approach that lead to predictive results and superior litigation outcomes.
Why is it important to understand a witness' mental state prior to testimony?
Testifying at a trial or deposition often creates a high level of stress, anxiety, and fear in witnesses, mentally wearing them down and causing them to respond from a place of emotion rather than a place of rational cognition. This can result in witnesses attempting to take matters into their own hands, frequently becoming frustrated, argumentative, or easily moved to offer long-winded answers that can ultimately be used against them. This kind of emotionality can not only inhibit defense counsel from effectively defending the case but also create dangerous economic vulnerabilities. Traditional witness preparation does not prepare witnesses for how to counter neuropsychological manipulation. Courtroom Sciences can help you gain insight into the emotional state of the witness and control it effectively.
Who Is Your Audience?
Witness composure and demeanor are of paramount importance when it comes to jury decision-making. Research repeatedly shows that jurors frequently make their determinations while watching a witness. Jurors not only listen to the testimony presented, but they are also absorbing a witness's non-verbal communication. In fact, it is this non-verbal communication that can play a significant role in determining the credibility of a witness.
Jurors often engage in heuristic or experiential information processing mode, also referred to as an intuitive process. This can prevent jurors from carefully considering all the evidence and testimony presented to them. Instead, they may rely on their initial reactions and mental shortcuts to reach a decision quickly. In particular, jurors experiencing stress or anxiety may be more prone to rely on this intuitive mode.
Courtroom Sciences can help trial attorneys and their teams develop highly strategic inquiries and detailed plans for voir dire in order to select the most advantageous jurors for your case. Jurors who are more likely to engage in rational or logical processing, motivated to process information carefully, deliberately analyze the information, and more likely reach a logical conclusion, are the most favorable for most defendants.
Who Is Your Witness at Their Core?
Identifying your witness’s emotional style accurately is an essential step for mitigating risk and achieving superior outcomes. There are four specific and high-risk emotional states that are prevalent in many witnesses, including overly agreeable, defensive, angry, and apathetic. While witnesses may demonstrate just one of these emotional states, they may also fall into more than one of these categories, and any one of these various emotional behaviors could prevent a witness from being able to give effective and credible testimony during a deposition.
Witness assessment can take a substantial amount of time, making it imperative for litigation teams to meet witnesses in person and early in the case to effectively evaluate their emotional predisposition. With continued practice and utilization of learned skills, witnesses will be able to provide strong, effective testimony when it matters the most.
How Does Your Witness Feel About This Case?
A witness who feels insecure, anxious, or guilty may feel obligated to protect themselves, their employer, or their actions. This defensive behavior could cause them to quickly regress into fight or flight cognition, provoking them to respond emotionally rather than cognitively, resulting in poor, ineffective testimony. Similarly, a witness who feels anger at having to go through the legal process may appear argumentative, emotionally unstable, or even dishonest.
Depending on how your witness feels about the case, they may be predisposed to traps or tactics that can prevent them from giving effective, credible testimony. For this reason, it’s critical that trial attorneys recognize how a witness feels about the case in order to address their emotions and then teach witnesses to control their demeanor for optimal performance.
At Courtroom Sciences, we know that understanding who your audience is, who your witness is at their core, and how they feel about your case are all imperative elements that will enable successful witness preparation and resulting testimony. Courtroom Sciences can help trial attorneys prevent nuclear settlements and nuclear verdicts through focused witness effectiveness training and science-backed data. Discover how our methodical litigation approach leads to predictive results and favorable outcomes. Speak with one of our experts to get started.
● The strength and credibility of witnesses is a crucial component in case outcomes.
● Effective witness preparation has become one of the most essential tasks a trial attorney performs.
● Vital to enabling successful witness preparation is the ability to answer three questions: who is your audience, who is your witness at their core, and how do they feel about this case?
● Courtroom Sciences can help trial attorneys prevent nuclear settlements and verdicts through focused witness effectiveness training and science-backed data.
By Courtroom Sciences
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