With witness deposition performance topping the list of causative factors for nuclear verdicts, being able to identify your witness’ emotional style accurately prior to deposition testimony is an essential step for mitigating risk and achieving superior outcomes. 

Four dominant emotional states have the possibility of damaging your witness’s credibility. While one or more of these states will likely appear during deposition preparation, with effective witness assessment, litigation teams can help address these emotions and make sure that emotional regulation skills are put into place. 

Witness assessment can take a substantial amount of time, making it imperative for legal teams to meet witnesses in person and early in the case to effectively evaluate their emotional predisposition. With the outcome of your case closely correlated with a witness’ deposition performance, Courtroom Sciences’ experts can help you gain insight into the emotional state of the witness and control it effectively. 

What are the four witness emotional states?

There are four specific and high-risk emotional states that are prevalent in many witnesses, including overly agreeable, defensive, angry, and apathetic. Witnesses may demonstrate just one of these emotional states, or they may fall into more than one of these categories. Legal teams must accurately identify their witness’ emotional state before deposition preparation in order to control it effectively. 

The Agreeable Witness

Securing a positive outcome for your case generally requires that you have a calm, credible, and likable witness. Even though agreeableness is generally thought of as a positive attribute, there are some negative aspects as well. While a good-natured witness is compelling during testimony, one that is overly agreeable could leave your case vulnerable to unpredictable situations.

Those who are high in agreeableness generally try to please other people and often demonstrate characteristics such as compliance and empathy. Someone who is overly agreeable is generally uncomfortable with the possibility of letting people down. 

While people often regard those who are agreeable as trusting, helpful, and cooperative, an overly agreeable witness can be problematic in a deposition as they may be more willing to agree with leading questions made by the plaintiff’s attorney during the deposition. Despite the best intentions of the witness, this could cause them to inadvertently admit to fault, negligence, egregious conduct, and/or causation during questioning from the plaintiff's attorney. 

The Defensive Witness 

Defensive behaviors are common responses when a person is feeling insecure, anxious, guilty, shameful, and/or helpless. When a person is exhibiting defensive behaviors, they will often make excuses, blame others, or try to justify their actions. Defensiveness can be exacerbated when a person is feeling personally attacked, as a witness might be during a deposition.  

A defensive witness may feel obligated to protect themselves, their employer, or their actions, and their defensive behavior may cause them to appear oppositional   or argumentative. This behavior could unintentionally make them appear guilty. In addition to what they say, a witness's posture may also appear defensive. Feeling threatened, defensive witnesses may regress into a fight or flight posture, causing them to respond emotionally rather than cognitively and resulting in poor, ineffective, and potentially damaging, testimony. 

The Angry Witness

Many witnesses are emotional about the experience of testifying, and a witness who feels like the litigation is negatively affecting their life may feel anger at having to go through the legal process. However, a witness who exhibits anger is likely damaging their credibility and may appear as if they are obstructing the proceedings. Even before arriving at the deposition, an angry witness is more likely to be provoked during deposition testimony. 

Angry witnesses may demonstrate some of the same characteristics as a defensive witness, such as rushing to defend themselves or blaming others, but they are also more likely to become argumentative with both plaintiff and defense attorneys during their deposition, which can cause them to be perceived as emotionally unstable and dishonest.

The Apathetic Witness

An indifferent witness, one who looks to be uninterested in their testimony or the result of the case, will have very little credibility, negatively impacting their deposition performance. Even if a witness does, in fact, care about the consequences of the litigation, if they are not able to deliver a strong and passionate testimony, they could appear to be cold or uncaring. 

Lack of believable testimony isn’t the only risk posed by an apathetic witness. They may inadvertently make the plaintiff look more sympathetic with their lack of conviction. 

Putting Emotional Regulation Skills Into Place 

Any one of these various emotional behaviors could prevent a witness from being able to give effective and credible testimony during a deposition. Neglecting any of these emotions or behaviors won’t make them go away, so to avoid having a witness display one or a combination of these emotions during a deposition, witnesses must first be assessed, and then their pre-existing emotions need to be addressed well before deposition preparation begins. 

Assessment of witnesses should take place both through general conversation as well as pointed questions, paying attention to both the substance of the answers and the style in which the witness responds. Once the individual’s emotional state is assessed, emotional regulation skills can be put into place. 

When it comes to high-risk, emotional witnesses, the more practice that can be done, the more comfortable they can become with the process, and the less likely they are to express unwanted emotions during the deposition. With continued practice and utilization of learned skills, witnesses’ deposition performance and their ability to provide strong, effective testimony when it matters the most will improve. 

With many cases highly dependent upon credible deposition testimony from witnesses, a fully-trained witness can be integral to a positive and economically advantageous outcome. Courtroom Sciences can help assist litigation teams to mitigate risk by ensuring that your witnesses are credible and fully prepared for testimony. Our proven neuro-cognitive witness effectiveness training program is designed to prepare even the most difficult witnesses. Speak with one of our experts to get started. 

The Impacts of Emotional States on a Witness’ Deposition Performance | Key Takeaways

●  Four pre-existing emotional states are prevalent in many witnesses.

●  One, or more than one, of these various emotional behaviors could negatively impact a witness’ deposition performance and prevent the witness from being able to give effective and credible testimony.

●  Identifying your witness’ emotional style accurately prior to deposition testimony is an essential step for mitigating risk and achieving superior outcomes. 

●  Through deposition preparation, Courtroom Sciences can help litigation teams ensure that witnesses are able to provide strong, effective testimony.