Practice makes perfect: the psychology of witness preparation.

In a symphony, one false note--he drum roll that shouldn't have been, the flat trumpet call at the wrong moment--can ruin an Otherwise lovely performance. It's the one musical element the audience will remember.

A trial is like a symphony. The lawyer is the conductor; the witnesses, the orchestra; the jurors, the audience. And just as in a symphonic performance, one false note served up by a key witness can kill the case.

Masterful lawyering is essential to courtroom success. But skeptical jurors often tend to disregard attorney oratory. These jurors want to hear what the witnesses have to say. Indeed, witness testimony and demeanor are usually the primary factors on which jurors base their decisions. Powerful opening statements and dramatic closing arguments are of little account if the witnesses are weak or unappealing and their testimony flawed, contradictory, and damaging.

Because witnesses play such a critical role in the courtroom, attorneys should make witness preparation a pivotal element of trial planning. It is a good idea to prepare witnesses short,y before deposition and again directly before they are to appear in court. A good rule of thumb is to spend at least three hours of preparation time with the witness for every hour of planned testimony.

An important goal is helping a witness project his or her personality in the most positive light possible. Many seasoned trial consultants believe that witness likability is even more critical to jurors than credibility. If jurors don't like the witness, they have a tendency to tune out the testimony. If, on the other hand, jurors like the witness, they will often disregard any potentially incriminating testimony the witness gives.

Another key goal is helping witnesses understand exact,y what to expect. They should be told that much of the deposition and cross-examination process is a mind game and a word game. The opposing attorney wins by nipping up witnesses to make them look bad.

To avoid this, witnesses must lea,n not to volunteer unnecessary information. Although likable and articulate witnesses can be given some latitude to tell their story, other witnesses should answer with tightly circumscribed responses: "Yes," "No," "I don't know," "I don't understand the question," and "I don't remember." In the courtroom, brevity often is best.

Nervous Witnesses

One big problem that witnesses face is overcoming their stage fright. It undermines witness likability (it is almost impossible for a nervous witness to project a positive image) and credibility (jurors may wonder whether the witness is nervous because he or she is being untruthful).

Also, a nervous witness can easily become confused during deposition or while on the stand and fall into the trap of giving damaging testimony. Consequently, preparation sessions should provide witnesses with techniques for reducing their nervousness to manageable levels while being questioned.

Psychologists have developed mental exercises over the years to help witnesses do this. Although somewhat time-intensive to master, these "cognitive rehearsal" exercises have proven successful in helping witnesses overcome their nervousness.

Witnesses can be taught to confront the fear of testifying through relaxation techniques that selectively and successfully deal with the anxiety-inducing stimuli the witness associates with testifying. The least anxiety-producing scenarios are dealt with first, then progressively the more difficult ones.

For example, the witness is encouraged to visualize a peaceful scene, like sitting by the shore in the late afternoon on a bright, beautiful day. The witness is then taught how to instantaneously tap into this calming image during stressful situations--while testifying in deposition; while taking the stand; while facing the judge, jury, and lawyers; while answering questions in direct examination; and while answering questions during cross-examination and rebuttal.

Each anxiety-producing scenario is acted out, over and over, with the witness being encouraged each time to summon up the serene imagery before responding to a question.

This type of mental relaxation training parallels therapeutic techniques psychologists and psychiatrists have successfully used to help patients overcome fears of flying, driving, or speaking, for example.

Another helpful positive focusing technique is training witnesses to invoke mental tableus of juror affirmation and acceptance while testifying. Witnesses are asked to envision a series of highly positive responses to their answers. For example, a witness might be asked to "imagine the jurors smiling kindly as you speak" or "imagine the jurors nodding their heads in agreement with what you have to say."

Often these mental training exercises concentrate on questions that could elicit responses that may prove to be potentially embarrassing to the witness -- "Imagine the jurors cheering your honesty as you reveal some of your personal faults and misdeeds." Eventually, the witness learns to feel at ease while testifying.

Witnesses who greatly fear being questioned by opposing counsel need to find some way to overcome this. One proven way is to help the witness learn to visualize the opposing attorney as a comic character.

The witness might visualize opposing counsel asking questions in a ludicrous scenario--for example, while the opposing attorney is trying to juggle blobs of Jell-O or being chased around the room by a quacking duck.

The point of these exercises is to help the witness see opposing counsel less as an all-powerful Grand Inquisitor and more as a fallible human being. It is important, however, that these exercises be organized in a way that does not lessen the witness's full appreciation of the adversarial nature and potential danger of cross-examination. Instead, the exercises should be designed to eliminate or at least substantially reduce opposing counsel's ability to intimidate the witness.

However, witnesses should also be aware that opposing counsel may be anything but intimidating. A lawyer who uses a "nice guy" interrogation approach may be able to lull a witness into a false sense of security. Therefore, witnesses should be told to be cautious when confronted with this tactic. More witnesses hurt cases by agreeing with the nice guy on the other side than by confessing to an aggressive "Perry Mason"-style interrogator.

Attention-Focusing Techniques

Many witnesses do not pay close attention to the questions they are asked. Consequently, they often are far too responsive, even voluble, on the stand. This may be because they feel a need to explain themselves to others--a common human compulsion.

Witnesses must learn to listen carefully and limit their answers to only those questions asked. This can be accomplished during trial preparation sessions by structuring the training exercise as a game in which the witness "earns points" for answering questions succinctly.

A variant of this exercise is helpful in preparing a witness for nonvideotaped deposition testimony. The witness is instructed to count silently to 10 before giving an answer. This gives the witness time to plan an answer. It also gives the plaintifFs attorney the time to raise objections to improper questions during cross-examination.

The technique is not as effective in preparing for videotaped testimony. Jurors may be put off by someone who waits 10 seconds before answering a question. The testimony may appear rehearsed or the hesitation could be read as an attempt to stall for time to come up with an answer. But in nonvideotaped deposition testimony, this pause would have no effect on the trier of fact, because it would not be apparent in the transcripts.

The witness also should be told to watch for common interrogatory ploys the opposing attorney may use to encourage the witness to inadvertently say more than is necessary. These ploys include muttering "Yes?" or "And?" or something similar after the witness has provided a response, then waiting expectantly for more information.

Emotional Responses

Some plaintiff witnesses fail to register any emotion when being questioned about their injuries. This makes it difficult for jurors to empathize with them.

But many witnesses have no trouble exhibiting emotion in the courtroom. In fact, trials can trigger strong emotional responses. Sometimes, people cry uncontrollably at trials or they shout and curse at each other. Sometimes, fistfights break out.

A psychologist/trial consultant often can use various role-playing techniques to help both types of witnesses: with the first, to tap into, and show, their emotions in a manner appropriate to the circumstances, and with the second, to control emotions during stressful situations like depositions and trials.

To illustrate, let's suppose a witness who is unable to register emotion is the plaintiff in a medical negligence case in which her mother died. A role-playing exercise whereby the witness acts out what took place at the precise moment she learned her mother died may help her get in touch with her feelings of loss.

The witness might be asked to role-play not only how she felt at the moment she heard of her mother's death, but also to describe what she was doing and thinking, the expressions on the faces of her family, the items in her immediate vision, even the furnishings of the room in which she was located when she learned the news.

When a witness has trouble controlling emotions, the role-playing exercise might involve providing testimony while pretending to be someone who possesses great style and grace, like Katherine Hepburn, or someone who is seen as strong but reserved, like John Wayne.

It is always worthwhile to videotape these role-playing exercises, so witnesses can see how they come across. I have used a special monitoring technique I call "The Opinionator." The witness practices testifying while watching himself or herself live on a television monitor. In another room, surrogate jurors also observe the witness on another television monitor.

The jurors use electronic devices to register their moment-by-moment impressions of the witness, who is graded according to key criteria--for example, credibility and likability. An electronic graph of the jurors' collected impressions is displayed on another monitor that the witness can see. Allowing the witness to watch himself or herself testify while also noting how others are grading the testimony can be highly instructive.

Frame-of-Reference Training

Witnesses who are not taught the rules of the mind and word games inherent in giving testimony, or how to play these games, are likely to fail miserably during deposition or at trial. Therefore, witness preparation should include linguistic exercises that are known as frame-of-reference training.

For example, attorneys should show witnesses how a clever interrogator can make someone appear to be lying.

Attorney: Has anyone ever given you a loan?

Witness: No.

Attorney: You're positive about that.

Witness: Yes, absolutely.

Attorney: Didn't your father lend you $100 so you could get an apartment when you were just out of college?

Witness: Well, yes.

Attorney: Money that you were to pay back?

Witness: Um, that's right.

Attorney: So, when you said a few seconds ago that you have never taken a loan, you were lying, correct?

Witness: Well, I wasn't lying . . .

Attorney No? What would you call it'

Witnesses need to learn to confine their answers only to information and knowledge they are currently in touch with and are sure of--and nothing else. They should be told that "I don't remember" or "I don't have enough information to answer that question" may be perfectly legitimate responses. The witness must learn how to frame answers in this qualified manner.

In the previous example, the witness could have given the following responses to the questions posed:

Attorney: Has anyone ever given you a loan?

Witness: As I sit here right now, I can't recall any.

Attorney: Didn't your father give you an apartment loan of $100 right out of college?

Witness: You know, you're right. That was over 10 years ago, but now I remember.

By answering questions this way, witnesses inoculate themselves against being tricked into appearing to lie. In effect, they always leave room to answer a question a second time with a different response, based on new or recalled information. Of course, witnesses must learn to use these answers judiciously to avoid appearing evasive.

Also, witnesses should be told to answer only what they can precisely attest to--the concrete details the witnesses saw or heard. An example of this is the following exchange:

Attorney: You're saying that the doctor killed your mother by giving her the wrong medicine?

Witness: I saw the doctor give my mother an injection. Immediately after receiving it, my mother began to clutch her throat and gasp for breath. She then fell to the floor and rolled around, trying to breathe. After a short while, her face turned blue. Soon, she stopped moving. The doctor pronounced her dead a minute or so later.

Witnesses must never infer--this should be left to jurors.

Witnesses also should be told that they have every right to insist that opposing counsel carefully phrase questions so that their answers cannot be intentionally misinterpreted. Consider the following example:

Attorney: Ms. Smith, do you consider yourself a hard-working employee?

Witness: That depends on what you mean by "hard working."

Attorney: Come on, Ms. Smith. Everyone knows what "hard working" means in that context.

Witness: I don't agree. People often use the same terms to express different concepts.

Attorney: Ms. Smith, professional employees at the m Company normally work 50 to 60 hours weekly. Did you?

Witness: I generally worked 40 hours or so each week at XYZ.

Attorney: So by the standards at the XYZ Company, you were not a "hard working" employee.

Witness: Let me repeat. I generally worked 40 or so hours each week at XYZ.

Attorney: You are evading my question, Ms. Smith.

Witness: No, I am not. I am telling you how many hours I would normally work each week.

Attorney: No further questions, your honor.

The attorney in this example clearly hoped to trip the witness up by forcing her to respond with a "lose-lose" answer. If the witness said she was a hardworking employee, the attorney might try to cast her as a liar. If, on the other hand, she said she was not a hard-working employee, she would have presented herself to jurors in a negative and potentially damaging way.

Feedback

Because witness likability is critical to a successful trial outcome, witness preparations need to be organized so witnesses can learn what areas of their personal style, speech, demeanor, and delivery should be improved.

Often, this can best be achieved through the use of operant conditioning techniques using mirrors and video cameras. If witnesses can see how they appear to judge and jury when giving testimony, they will more easily accept constructive advice.

The mirror is preferred for immediate feedback; the video camera, for follow-up to help witnesses discuss their emotional responses to certain questions. "How did you feel when that question was asked?" "How did you show what you felt?" "Is the expression of this emotion useful when testifying? If it is not, let's consider some ways that will help you to achieve more control over your emotions."

It is also worthwhile to have witnesses practice giving testimony in front of surrogate jurors, who can provide feedback regarding style, demeanor, and credibility. Surrogate jurors should be asked not only to "grade" witnesses according to these criteria but also to detail other types of valuable information--for example, the most and least relevant statements the witness made, the topics jurors would like to hear more about, and the testimony that jurors found most confusing.

Armed with this data, the attorney will know how to best plan the questioning of the witness--which things to stress, which to avoid, and what questions to ask to elicit testimony likely to be most important to jurors.

Expert Witnesses

Expert witnesses require special preparation, which should focus on techniques to help them become good teachers. They should be encouraged to use metaphors and analogies to explain key points. Great metaphors and analogies have special power. They are linguistic branding irons that sear into the subconscious, making it difficult for the ideas they represent to be removed or replaced.

An example of how analogies can be used effectively at trial occurred during a dry condemnation case in which I participated. An appraiser testifying as an expert witness for the landowner said that, for the plaintiff, the threat of condemnation "was like waiting for the other shoe to drop."

Shortly after this testimony was given, jurors awarded the full amount requested. Jurors later indicated that, due in large part to the analogy, they were able to empathize with the plaintiff.

Preparation sessions should also include techniques to teach experts to limit their testimony to their area of expertise. They should avoid rambling answers. Jurors will tune out a long-winded and boring witness. This is especially true with highly technical testimony.

The way around this is to break up the testimony with well-planned questions, each requiring a concise answer. The effect is like a tennis match--question, answer, question, answer, question, answer. This brisk back-and-forth exchange will help hold the jurors' attention.

Another goal of expert witness preparation is helping experts learn how to introduce their professional credentials without seeming boastful. The following is an example of how this can be done:

Attorney: Doctor, you are the author of the book Neurosurgery and the Elderly Patient, are you not?

Witness: Yes.

Attorney: And your book is required reading by surgical residents and students in most major medical centers, medical universities, and teaching hospitals in the United States and Canada?

Witness: Yes.

Attorney: When was your book first published?

Witness: 1978.

Attorney: And it has been reprinted since then?

Witness: Yes, it has.

Attorney: How many times would that be?

Witness: Sixteen times.

Attorney: Thank you.

In this example, the attorney has not come out directly and told the jurors that the expert is a leading authority on neurosurgery. Jurors are left to infer this from the facts presented.

The average witness is often treated by lawyers like Crazy Aunt Lizzie--the goofy spinster relative who is kept squirreled away in the attic so she won't smash up the furniture or burn down the house. Keeping Aunt Lizzie locked up may be a workable strategy for a family, but when it comes to court cases, "out of sight, out of mind" doesn't work. Sooner or later, the attorney must introduce the witness into the trial mix.

It is vital, therefore, that the attorney ensure that all witnesses are fully and competently prepared. This means that when it is their time to take center stage and testify, they will be able to come across in the most attractive way possible and will provide the strongest and most relevant testimony.