Witness performance is unequivocally the leading determinant of verdicts and damage awards. The immense magnitude that witness performance has on settlement and verdict results necessitates that witness preparation is one of the most fundamental and essential tasks that a trial attorney performs. Traditional witness preparation strategies do not prepare witnesses for the manipulative reptile questions they can inevitably face despite this vitalness. 

A difficult witness, particularly one that is angry or apathetic, can disproportionately impact settlement and trial outcomes and result in a nuclear verdict. Despite meeting with your client, reviewing the process in-depth, and preparing them for every conceivable scenario, they may become thwarted by their own emotions, causing them to succumb to manipulative reptile questions, make critical errors, or even derail the case. 

The psychology experts at Courtroom Sciences can help you mitigate risk with effective witness preparation. Our sophisticated neurocognitive witness training program is designed to prepare even the most challenging and dubious witnesses, leaving them poised, confident, and persuasive. 

What are some preparation strategies that work best for difficult witnesses?

For defense attorneys, mitigating the high-risk emotional state of difficult witnesses can be done through the following four steps: identifying the pre-existing emotion, putting emotional regulation skills into place, teaching cognitive reappraisal skills, and continued practice and utilization of learned skills. During a deposition or trial, these strategies will enable the witness to detect an emotional threat from opposing counsel, calmly identify the threat as an attempt to bait the witness, and deliver compelling testimony.

What Causes a Difficult Witness

While defense attorneys may anticipate that witnesses for the plaintiff will be difficult, the fact is that even an attorney's own witness can prove challenging for a variety of reasons. Despite previous preparation, your witness commences their testimony and immediately begins making the mistakes you repeatedly warned them against. This scenario is precisely why it is essential to accurately identify your witness' emotional style before deposition testimony and address and control it effectively. 

Your witness may be predisposed to traps or tactics based on personal feelings or experiences. Witnesses who are angry or have taken on the role of a victim often feel like their lives have been negatively affected by the incident in question through no fault of their own. Apathy is another not uncommon emotion among witnesses that can cause them to appear cold or uncaring as a coping mechanism. These difficult witnesses are often resistant to preparation sessions and highly likely to become argumentative during their testimony.

Many of these individuals are unsure of how to, or have never, adequately expressed their negative internal thoughts and emotions. The emotionality of a difficult witness may cause them to be even more susceptible to experiencing an amygdala hijack or succumbing to the fight-or-flight response during questioning. Without gaining their trust or building a connection with these witnesses, a defense attorney wouldn't know of these potential pitfalls. 

Another prevailing issue among difficult witnesses is that they do not understand their role, particularly at deposition, and they may frequently try to assume other duties. Rather than listening carefully, considering carefully, and delivering an honest answer throughout their testimony, they may feel pressure to deliver scripted lines, persuade opposing counsel, or try to win the case. 

Preparation Strategies for Difficult Witnesses 

While strong, effective testimony can decrease a client's financial exposure and costs, weak, ineffective testimony can result in more severe damages during settlement negotiations or at trial. Far too often, the tendency during preparation is to focus on state emotional arousability, or getting emotional in the moment, while neglecting pre-existing, persistent emotions that preclude a witness from giving effective, credible testimony in the first place.

Effective preparation strategies for difficult witnesses should include these four steps:

1.  Identifying the pre-existing emotion - and allowing the witness to be able to express said emotion.

2.  Putting emotional regulation skills into place - these skills will allow the witness to effectively manage and respond to an emotional experience.

3.  Learning cognitive reappraisal skills - this tactic teaches a witness how to reinterpret negative stimuli to prevent the brain from an impulsive, spontaneous reaction.

4.  Continued practice and utilization of learned skills - allowing witnesses to provide powerful and effective testimony when it matters the most.

Courtroom Sciences can help trial attorneys ensure that witnesses can provide strong, compelling testimony through effective witness training. As part of the legal team, Courtroom Sciences can help prepare witnesses via neurocognitive training that will allow witnesses to deliver effective testimony that leads to superior litigation outcomes. Speak with one of our experts to get started.

Key Takeaways

●  A difficult witness can disproportionately impact settlement and trial outcomes and result in a nuclear verdict. 

●  A difficult witness may make the mistakes you repeatedly warned them against despite previous preparation. 

●  Difficult witnesses may not understand their role, and they may frequently try to assume other duties.  

●  Witness preparation strategies for difficult witnesses include identifying the pre-existing emotion, putting emotional regulation skills into place, learning cognitive reappraisal skills, and continued practice utilizing learned skills.

●  Courtroom Sciences' psychology-based witness training program can prepare even the most difficult witnesses, leaving them poised, confident, and persuasive.