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Pre-trial assessments make witness testimony pay off.

Pre-Trial Assessments Make Witness Testimony Pay Off

An attorney recently told us that when he conducted brief in-the-hall interviews with jurors following an important case, he was "shocked" to learn that his $600 per hour expert had been unanimously rejected by the jurors. The attorney had spent hours in pre-trial conference with this witness, and he was pleased with his witness's testimony. The jurors, however, disliked this long-winded expert so much that they agreed in their deliberations to disregard his testimony altogether.

Our own post-trial interviews with jurors have also revealed that the testimony of a key witness is often discounted for reasons that were unanticipated by the trial attorney. Often, even experienced attorneys are unable to accurately predict how the jury will perceive key witnesses. One reason is that the attorney is too knowledgeable about the case to make an

objective judgment. Moreover, attorneys tend to be information-seekers who focus on the content of the witness's testimony. Jurors are more likely to respond to a variety of nonverbal and paralinguistic behaviors of the witness. To realibly predict how a lawyer will react to a witness, ask a group of lawyers. To relibly predict how a group of jurors will react to a witness, ask a group of surrogate jurors.

Most lawyers would agree that credibility is a key component of communication effectiveness. Yet, most lawyers would be hard-pressed to specifically define what they mean by credibility. Aristotle described three specific attributes that a speaker must convey to achieve credibility in the eyes of the listener: "There are three things which inspire confidence in the orator's own character--the three, namely, that induce us to believe a thing apart from any proof of it: good sense, good moral character and goodwill ... Anyone who is thought to have all three of these good qualities will inspire trust in his audience."

Today, communication scientists and social psychologists refer to these attributes as competence, sincerity and likability. Modern day research has shown that competence and sincerity are indeed important components of credibility. We have also found that likability, as well as clarity, are important dimensions of how witnesses are perceived, though these attributes are sometimes perceived as independent of credibility. Taken together, there are three important dimensions of witness effectiveness: credibility, likability and clarity. These dimensions can be further broken down into specific sub-dimensions.

Jurors derive these attributes from a witness not only by what they say, but also by how they say it. Often, paralinguistic and nonverbal cues are more important than the content of the testimony. For example, jurors may misattribute a latency in response time to a question, which is actually the amount of time the witness takes to control a hostile emotion, as a sign of incompetence. They may misconstrue the witness' stammering and heavy sighs, which may result from a sense of indignation or anxiety over the implication of a question, as signs of insincerity. And jurors typically come to dislike witnesses who are evasive, defensive and fearful of being trapped by a line of questioning.

Named parties, in particular, generally fail to communicate their intended message because of the mixed signals they send to jurors about their credibility and likability. For example, medical doctors facing a malpractice suit are often dreadful witnesses and can make a case unnecessarily difficult to defend. They typically feel angry, resentful and indignant that their skills are being questioned. They become anxious, defensive and combative, particularly during cross-examination. These feelings send unintended messages to a jury in the form of paralinguistic and nonverbal cues which, in turn, affect their credibility.

Witness Assessment

The best way to determine whether these feelings are being unintentionally sent through the testimony and creating misattributions that reflect on a witness's testimony is to present the testimony to panels of surrogate jurors before stepping into the courtroom. By assessing jurors' perceptions of these factors, specific areas of strengths and weaknesses can be profiled for each witness. Based on this profile, a communication skills training program can be designed and implemented for each witness using one or a combination of techniques, including behavior modification, cognitive restructuring, cued responses, relaxation training, role playing and self-observational self-control.

Pre-trial research with surrogate jurors is a remarkably effective method of gauging how jurors will react to a particular witness and why. Furthermore, knowing what surrogate jurors think of witnesses before trial can provide critical information for strategic decisions, such as determining the optional order of witnesses, selecting the best witness from a pool of alternates and deciding which witness should tell which parts of the trial story. The results of pre-trial witness research can also be used to redesign a witness's examination to showcase his or her strengths and hide or minimize weaknesses.

Witness training programs almost always require diagnostic evaluation by a communications psychologist. Knowing how a panel of surrogate jurors perceived a witness makes such expert evaluation more efficient and productive. This type of research permits us to statistically profile a witness's credibility, likability and clarity. With this profile, a communications psychologist can focus on the behaviors as perceived by jurors, rather than on the behaviors as perceived by the attorney.

Moreover, pre-trial assessment by surrogate jurors can be used to determine whether a witness training program is even necessary. While on some occasions our research has uncovered that jurors would perceive a witness negatively, we have sometimes found that jurors would perceive a witness positively even without a communication psychologist's intervention.

In planning witness assessment, it is important to know why the witness is being assessed, the witness's intended role at trial and the time-line, budget and witness availability for subsequent rehabilitation work. These issues usually determine the specific nature of the research and rehabilitation process. In general, however, there are methodological and analytical guidelines to follow that will maximize the accuracy and utility of the research process.

To be effective and reliable, there are methodological guidelines which pre-trial witness research with surrogate jurors must follow. First, the surrogate jurors must be demographically matched to the people in the venire where the trial will be held. Stratified random sampling is a commonly used sample design which ensures that surrogate jurors will be representative of the actual jury. Failure to accurately represent the probable jury pool would produce questionable results.

Second, if multiple witnesses are to be evaluated in the research, then the order of presentation of these witnesses to the jury panels must be considered. The mere order of presentation may affect how a particular witness is perceived. The presentation of the first witness may affect perceptions of the subsequent witnesses and vice versa. These effects are known as primacy and recency effects. To statistically account for these effects, the order of presentation of witnesses should be properly counter-balanced across different jury panels to control for order bias. For example, a Latin-Square design is a common counterbalancing approach in which three different jury panels view three witnesses in different orders of presentation:

Jury Panel 1: ABC

Jury Panel 2: BCA

Jury Panel 3: CAB A represents Witness One, B is Witness Two and C is Witness Three.

With this design, each of the three witnesses will appear as the first, second or third to witness for different juries. If order effects are present, then they should balance out across the three panels, and the ratings of all three panels for a witness may be pooled and statistically assessed. Of course, with this design, extra care must be taken to equate the composition of each of the panels to avoid confounding order effects with panel composition differences.

Finally, the sample size of surrogate jurors must be sufficiently large to produce statistically reliable results. Small samples produce results that have large margins of error. The larger the sample size, the smaller the margin of error in the profiles that are generated. As a rule of thumb, the very minimum sample size to strive for is 30 in a study of this kind. This permits what statisticians call a "normalization of the probability curve" which will satisfy a critical statistical assumption when determining the margin of error for any given response. However, even with a sample of this size, margins of error are large. Nevertheless, we have found that even these small sample sizes generate profiles that are far superior and more predictive of the actual jurors' perceptions of a witness than the trial team's initial perceptions. Additionally, if there is a concern that certain sub-groups of the potential jury pool may see a witness differently from other sub-groups, the sample size must be large enough to allow for the analysis of these differences. Again, a minimum sample size to strive for is 30 for each sub-group to be analyzed.

Pre-trial witness research can be conducted in one of two settings. One approach is to design a special study specifically to evaluate witnesses. This is most appropriate when there are several witnesses to be evaluated. An alternative approach is to design witness evaluation techniques as part of a larger study. For example, several mock trial research techniques are appropriate for including witness testimony as part of the presentation to surrogate jurors. This approach is more practical if only one or two witnesses are to be evaluated.

Questionnaire Design and Analysis

Data collected for each witness must be scientifically designed and structured to accurately and meaningfully assess witness communication behaviors. As indicated, we know from the psychology literature and from our own research with actual and surrogate juries that jurors judge witnesses on the dimensions of credibility, likability and clarity. However, without specially designed questionnaires, juror reactions to witnesses tend to be global. Jurors use general terms such as "good" or "poor" and often have trouble verbalizing the reasons for their opinions. Therefore, the research team must design assessment instruments which will elicit meaningful and accurate data across the relevant dimensions and subdimensions of witness communication effectiveness.

The best pre-trial research assessment instruments include a variety of quantitative and qualitative measures about the target witness. Together, carefully planned and properly collected quantitative and qualitative data provide a rich information base which accurately and completely profiles witnesses from a juror perspective. Quantitative measures include rating scales, semantic differentials, adjective checklists, and multiple choice questions. Often, the quantitative responses are combined using a pre-determined weighting formula to generate scores.

Qualitative measures include open-ended and projective questions which are then aggregated, content analyzed and interpreted by a research psychologist. Qualitative responses often clarify or elucidate the quantitative results. For example, asking surrogate jurors what they imagine a witness does in his spare time can reveal some surprising speculations which explain why the witness received low ratings on certain dimensions.

Like many disciplines, psychology has been affected by high technology. Consequently, there are new research tools available to help us more accurately measure juror reactions. One of these tools is called a Perception Analyzer [TM], a group testing system that uses hand-held devices to measure moment-by-moment reactions of surrogate jurors to arguments or testimony. The use of these hand-held units allows participants to anonymously record their reactions instantly, free from the biased comments from other participants. These reactions can be instantly graphed and later superimposed onto a videotape of a witness's testimony to show the impact of the testimony, point by point, as the testimony is being presented to a surrogate jury panel.

This approach provides certain types of feedback about witnesses that cannot be obtained any other way because it permits comparison across the various sections of the same witness's testimony. Consequently, the Perception Analyzer [TM] is an excellent method for determining the content areas in which a particular witness is most effective. This tool is also valuable for discovering certain types of idiosyncracies in the witness's communication style that elicit favorable or unfavorable juror responses. For example, using the Perception Analyzer [TM], we have found that some witnesses are more persuasive when they stick to brief answers, while others are more effective using a narrative response style.

Expert Assessments

When time and resources prevent launching a full-scale research project, a communications psychologist can make an expert evaluation, which replaces surrogate juror assessment. It is important to recognize the limitations inherent in skipping a juror-based assessment. Expert evaluation does not produce trial strategy recommendations because the communications psychologist cannot predict jurors' overall reaction to the witness. Further, without prior knowledge of how surrogate jurors rated a witness, some of the communication deficits identified by the communications psychologist and targeted for intervention may have little, if any, impact on how a jury will view the witness.

Despite these limitations, a communications psychologist experienced in the field of jury psychology is the next best thing to relying on juror-generated assessments. The expert can approximate jurors' assessments of a witness's communication style and identify the nonverbal and paralinguistic distracters which are likely to interfere with effective communication. If necessary, the communications psychologist can also elicit feedback from witnesses about their attitudes, thoughts and feelings about testifying. This type of dialogue is critical to generating positive changes in communication behavior for many witnesses.

The ultimate goal of such a research and rehabilitation program, of course, is to persuade the jury. For juries, persuasion is more than a simple matter of brute logic and reason. The objective content of any testimony is only part of the persuasion process. Understanding how others are likely to perceive a witness is the foundation of witness preparation. This becomes the springboard for rehabilitative work to help witnesses find the right words and master a more persuasive style.

Aaron Abbott, Ph. D., and Adam Davis, J.D., are with Jury Behavior Research, Inc., a Los Angeles, CA, consulting firm that conducts pre-trial behavioral research.
COPYRIGHT 1989 Risk Management Society Publishing, Inc.
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Copyright 1989 Gale, Cengage Learning. All rights reserved.

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Author:Abbott, Aaron; Davis, Adam
Publication:Risk Management
Date:Jun 1, 1989
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