At Courtroom Sciences, Inc., we have written and podcasted extensively about the importance of effective witness testimony.   One area that we believe deserves additional attention, now more than ever, is how attorneys can help emotional witnesses prepare for their depositions.  While the concept of an emotional witness encompasses a variety of circumstances and contexts, this article focuses on individuals who have been named in a lawsuit, have been accused of causing the plaintiff’s injuries, are key witnesses to the plaintiff’s alleged injuries, or have been blamed by the plaintiff in some other capacity.  With this type of emotional witness in mind, we outline five tips for attorneys to utilize when preparing their witnesses for deposition.

Tip #1: Redefine the Attorney-Client Relationship

Before any of our other tips can be useful, defense counsel should consider their initial approach with emotional witnesses. Emotional witnesses are often reluctant to speak with attorneys for a myriad of reasons including, they are annoyed at the thought of being involved in the lawsuit, their deposition is forcing them to relive the incident, they are unsure whether anyone will believe their side of the story, and they want the case to be over. 

One of the primary reasons we have seen reluctance in witnesses is they appear to be unsure of the attorney’s purpose or motivation. Specifically, they are unsure whether the attorney cares about them or is trying to protect the company – emotional witnesses tend to believe the latter. To help combat this belief, we have found it beneficial to tell the witness in the very first interaction, “My purpose is to defend the company, but it is also to protect you.” Witnesses need to understand the reason why the attorneys are meeting with them is they want to alleviate their concerns with the deposition process, they want to help them communicate more effectively, and they want to help them preserve their credibility with the jury. Bottom line, emotional witnesses need to know that someone “has their back.” 

Many witnesses are often reluctant to engage with attorneys because they are unfamiliar with the litigation process. Therefore, infrequent communication with witnesses allows for anxiety, anger, or frustration to build between communications. One emotional witness who was being blamed for causing the plaintiff’s injuries once stated that she felt like defense counsel and her company “left her out to dry” because she had not heard anything about the litigation process in the three years from the time of the incident to when she was being prepared for her deposition. To help establish a relationship, build trust, and reduce emotionality in witnesses, attorneys should consider checking in with “key” witnesses at regular intervals. Once witnesses believe that attorneys have their best interests in mind, it becomes easier to proceed with our other tips. 

Tip #2: Assess Witnesses’ Emotional States

One of the most common issues we see when training emotional witnesses for deposition is they often do not have an opportunity to “dump” their negative emotion(s). They may have discussed the case with their significant others or co-workers, but this does not always prove to be beneficial. We have witnesses who share with us that their co-workers will tell them, “You will be fine, you did not do anything wrong.” or their spouses will ask them before the training, “You are still dealing with that case? When is that going to be over!?” While these individuals’ hearts may be in the right place, the truth of the matter is that emotional witnesses typically need someone to listen to them and help them process their emotions and uncertainty. For some witnesses, being named in a lawsuit has left them with feelings of self-doubt. Savvy plaintiff attorneys can easily exploit these beliefs if defense counsel has not assessed or addressed them before the deposition. To the extreme, being named in a lawsuit has led witnesses to admit that they are questioning whether to remain in their current fields. They need someone to show empathy for the difficult situation they find themselves in – one that few others will experience in their lives. 

During initial discussions with witnesses, we have found that it is helpful for attorneys to ask questions such as: 

• How are you feeling about your deposition?

• How are you feeling about being blamed for the plaintiff’s injuries?

• How are you feeling about being personally named in this lawsuit?

• What are your thoughts about this lawsuit in general?  Why?

• Do you believe you did anything wrong?

• Have you had an opportunity to talk to a mental health professional about this incident? 

• Are you currently seeing a mental health professional about this incident? 

It is amazing how asking these simple questions can lead some witnesses to have an emotional catharsis. After allowing witnesses to experience their emotions, attorneys are one step closer to helping them provide effective testimony. 

We must not leave this topic, however, until we have addressed a potentially serious outcome of asking emotionally laden questions. Akin to “opening Pandora’s box,” asking certain questions may escalate emotionality in some witnesses or they may reveal information that an attorney might feel ill-equipped or unsure how to address. In an extreme example, a witness admitted during a deposition training session that she had been having suicidal thoughts. As such, it is important for attorneys to recognize when outside assistance is necessary. This may mean enlisting the assistance of professionals with the appropriate psychological backgrounds during the witness preparation process or pursuing mental health referrals within the community.

Tip #3: Identify “Hot Button” Areas

Another area that does not seem to get as much focus as it should when meeting with witnesses is a discussion of the pertinent case-related “hot button” topics. Hot button topics could be the plaintiff’s injuries, accident videos, accusations by plaintiff’s counsel that the witness is at fault for the plaintiff’s injuries, written documents that suggest the witness is to blame for the plaintiff’s injuries, documented communications to or from the witness, or actions that plaintiff’s counsel believes the witness could or should have taken to avoid the incident. At their core, hot button topics may lead witnesses to have their amygdala hijacked, resulting in a fight or flight response. Rather than “eating bad facts” with simple yes/no responses, witnesses begin providing “yes, but” or “no, because” responses that appear to be excuses to jurors. Discussing all known hot button topics before the deposition and providing guidance on how to respond can help witnesses avert negative juror perceptions. 

Tip #4: Alleviate Concerns about Testimony and Case Outcomes

Depending on case circumstances, witnesses may believe that their future employment with their company depends on the case outcome. Some witnesses believe that they could be personally named in the lawsuit if they say something in the deposition that could incriminate themselves, or worse, that their testimony could lead to criminal charges against them. Although this belief may seem ridiculous to those who work in the legal field, witnesses’ lack of understanding and familiarity with the litigation process allows their minds to craft scenarios and questions that heighten their emotional state and increase their anxiety. This type of thinking is often seen in line-level employees (e.g., truck drivers, bus drivers, or train operators) who have been accused of causing the plaintiff’s injuries and may view themselves as expendable to the company. Credentialed professionals, such as physicians, may wonder if their assets, licensure, or ability to be insured will be negatively impacted by the case outcome. As one surgeon asked, “If I lose, do my kids lose their college funds?” What is consistent across professions is witnesses’ tendencies to create “worst-case scenarios” in their minds. 

In these situations, we have found it is beneficial to let these witnesses know that their performance in the deposition and the case outcome will not have any detrimental impact on their employment (assuming this is factually true). We highlight that, while their deposition testimony is important, they are one witness among many witnesses. We also discuss what reasonable “worst-case scenarios” may look like for the individual witness.

Tip #5: Explain the Concept of “Their Truth” and “The Truth”

One thing we often tell witnesses is that they need to understand there is a difference between “their (i.e., the plaintiff’s) truth” and “the truth.”  When asked what they believe the purpose of the deposition is, witnesses repeatedly respond with, “to get my side of the story.” This line of thinking makes them want to “win” a deposition, and typically results in them becoming argumentative, defensive, or unnecessarily talkative. Witnesses need to understand that the plaintiff attorney is attempting to develop theories and narratives that help them win the case; therefore, opposing counsel is only interested in testimony that boosts or supports the narrative that is in their client’s best interest.

The concept of ”their truth” and “the truth” is crucial for emotional witnesses to understand because certain lines of questioning are more likely to make them feel attacked and could cause them to respond defensively. Even worse, it may cause them to buy into their feelings of self-doubt and admit fault. They are also more likely to provide long-winded answers or volunteer unnecessary information. Like hot button issues, emotional witnesses need to understand potential plaintiff theories or common tactics utilized by the specific plaintiff attorney whenever possible. This is most easily addressed and practiced via multiple sessions of mock deposition questioning. Some attorneys have voiced concern that “playing” the plaintiff attorney during aggressive mock questioning will negatively impact their relationship with the witness. However, when done correctly with time to debrief, the exact opposite has been demonstrated. Witnesses have repeatedly expressed a decrease in anxiety and an increase in self-confidence toward their ability to withstand prolonged questioning, while simultaneously providing effective deposition testimony.

As mentioned previously, emotionality in a witness can be the result of any number of circumstances. While this has always been an important element to address when preparing witnesses for deposition, it has become a more significant concern since the onset of COVID-19.  We have repeatedly seen exacerbated emotional responses to litigation and the deposition process in witnesses, likely due to the added stress and uncertainty of the pandemic.  This article focused on a specific group of highly vulnerable witnesses; however, it is important to note this is only one type of witness and does not encompass common emotional traits to be aware of and assess for in other witnesses. This includes witnesses who are not directly named or accused of alleged wrongdoing but are considered high-risk from an emotional perspective due to other circumstances.