How to Address 5 Witness Cognitive Distortions During Witness Preparation
A well-prepared, confident witness is essential for achieving favorable outcomes in settlements or trials. However, many witnesses struggle with cognitive distortions—irrational thoughts that can cloud judgment and weaken testimony. These distortions can lead to misinterpreting events or presenting unclear accounts. Attorneys who are aware of these challenges can help witnesses recognize and overcome these patterns and create opportunities for credible and compelling witness testimony.
How can attorneys recognize cognitive distortions in witnesses?
Attorneys should ask questions of witnesses prior to any preparation sessions to identify responses that may indicate a potential cognitive distortion such as blaming, negative thoughts, or overthinking. Experts in psychology and human behavior can help reframe cognitive distortions in witnesses. Using proven techniques grounded in psychology and cognition, these experts identify and help overcome biases that could affect testimony, resulting in clearer, more confident, and effective witnesses.
With the right preparation, witness vulnerabilities can be addressed and even transformed into strengths. Explore five common cognitive distortions that witnesses often experience, along with practical, effective strategies to overcome them during the preparation process.
1. Blaming
Blaming occurs when witnesses deflect responsibility for their actions, often pointing fingers at others – the plaintiff, a coworker, or even corporate policies. This cognitive distortion weakens the witness’s credibility, alienates jurors, and emboldens opposing counsel. Jurors dislike witnesses who appear unwilling to accept responsibility, as it often comes across as evasive or self-serving.
Witness training and preparation is a critical step in ensuring clear and credible testimony. Emphasize to witnesses that acknowledging responsibility, when appropriate, demonstrates honesty and credibility—qualities that strengthen their position. Remind them to present facts without assigning blame.
To maintain credibility, guide witnesses to avoid inflammatory or emotionally charged statements that could undermine their testimony. Mock depositions are an excellent tool for practicing responses, particularly in situations where witnesses might feel defensive. Encourage them to focus on providing factual, straightforward answers instead of shifting or assigning fault.
Reassure witnesses that determining fault is the responsibility of expert witnesses. Their role is to deliver precise and accurate testimony based on facts, free from speculation or deflection. With this approach, witnesses can feel confident and prepared to navigate even the most challenging lines of questioning.
2. Mental Filtering
Mental filtering occurs when individuals focus solely on negative facts while disregarding any positive aspects. Witnesses experiencing this cognitive distortion often fixate on perceived weaknesses in their case, fostering a defeatist mindset that can undermine their testimony.
To counteract mental filtering, several effective techniques can be employed. These strategies help witnesses recognize the strengths they bring to their testimony and improve their confidence.
Create Balanced Lists — Encourage witnesses to identify both the strengths and weaknesses of their case. Visual aids like a whiteboard or notebook can be especially effective for presenting these lists side by side. Seeing their strengths clearly outlined often helps foster a more balanced and constructive perspective.
Shift the Perspective - Remind witnesses that challenges are an inherent part of any legal case. Negative facts alone don’t dictate the outcome—they are merely pieces of a larger puzzle. What matters is how these facts are managed and addressed during testimony. Witnesses can maintain control and foster a more empowered mindset by focusing on their ability to present difficult information with confidence and clarity.
Acknowledge Fear and Anxiety - It's natural for witnesses to feel apprehensive about negative details in their case. However, it’s crucial to focus on the bigger picture. Cases are seldom determined by a single piece of evidence. Witnesses should understand that their demeanor, clarity, and confidence in delivering testimony hold far greater weight in the outcome.
By addressing mental filtering with these practical techniques, witnesses can develop a more constructive outlook and deliver stronger, more effective testimony.
3. Should Statements
Overthinking, which leads to an unproductive focus between the real and the ideal self, is also called rumination and often leads to “should statements.” These statements result from the tendency to dwell on past decisions and ruminate over what could have been done differently.
Witnesses often make statements like, “I should have reviewed that document more carefully,” or “I should have chosen a different course of action.” While such reflections may seem natural, opposing counsel can exploit them to suggest negligence or guilt.
To address this, it’s important to explain to witnesses that decisions are made based on the information and context available at the time. Introduce them to the concept of hindsight bias—sometimes called the “I knew it all along,” effect—which can create a false sense of clarity about past events. By understanding this bias, witnesses can shift their language from “I should have,” to “I made the best decision I could with the information I had.”
Encourage witnesses to focus on their present testimony and provide an accurate and clear account of events, without feeling the need to justify their past decisions.
Additionally, train witnesses to avoid speculative or regretful language. Instead of saying, “I should have,” they can reframe their responses to, “Based on the information I had, I decided to...” This approach projects confidence while effectively countering any attempts to mischaracterize their actions.
4. Control Fallacies
Witnesses who experience control fallacies often feel powerless, believing they have little influence over the deposition or trial process. This mindset can cause them to adopt a passive role, allowing opposing counsel to dominate the exchange, which may lead to unclear, inaccurate, or poorly structured testimony.
To address this, it’s critical to reinforce a witness’s sense of autonomy. Help them understand the control they have during testimony—such as deciding when to respond, how to frame their answers, and when to request a break if needed. This understanding fosters confidence and composure, enabling them to engage more effectively.
One effective strategy is tactical pausing. Encourage witnesses to take a moment before answering each question. This gives them time to consider their response and reinforces their control over the pace of the interaction.
Additionally, many witnesses are unaware they can request clarification when a question is unclear or can challenge misleading language. Educating witnesses about their rights and boundaries during testimony ensures they feel empowered to navigate the process with greater assurance.
5. Fallacy of Fairness
The fallacy of fairness occurs when witnesses become overly focused on the perceived injustice of a lawsuit, often expressing frustrations like, “This isn’t fair,” or “I did nothing wrong.” While these reactions are natural, they can foster resentment and defensiveness, which may lead to argumentative testimony that undermines the witness’s credibility. To avoid this, it is crucial to guide witnesses toward setting aside personal grievances. Instead, they should focus on maintaining their composure and remaining in the present, ensuring their testimony is credible and effective.
How to Address the Fallacy of Fairness to Deliver Effective Testimony:
Preparing witnesses for effective testimony requires a thoughtful and structured approach. Start by acknowledging and validating their emotions. Allow witnesses to express any frustration in a supportive environment before guiding the discussion toward their role in the case. Shift their focus to the primary objective: resolving the lawsuit. Emphasize that clear, effective testimony plays a critical role in achieving a fair and just outcome, regardless of how they feel about the lawsuit.
To build confidence and resilience, role-play potential scenarios where opposing counsel may attempt to provoke emotional reactions. Teach witnesses how to recognize and manage these tactics, emphasizing the importance of staying calm and composed. Encourage them to respond with factual, concise answers, even when faced with unfair or accusatory questions. By equipping witnesses with these strategies, you help ensure they remain credible and focused in their testimony, strengthening their contribution to the case.
Addressing Distortions With Courtroom Sciences
Witness training with experts in psychology and human behavior is a critical part of witness preparation. By leveraging psychology experts to address cognitive distortions, attorneys help witnesses navigate the litigation process with greater clarity and confidence. This approach enables witnesses to recognize and correct distorted thought patterns, ultimately enhancing their effectiveness and reliability at deposition or in the courtroom. The key lies in combining psychological insights with strategic preparation to ensure that witnesses understand their role, are prepared for the adversarial and foreign environment of a deposition or courtroom, and feel equipped to handle it.
Courtroom Sciences helps attorneys efficiently navigate litigation by providing psychological expertise, science-backed data, and expert support for all phases of litigation. Learn how CSI's litigation consulting experts can improve outcomes for your next case. Speak with one of our experts to get started.
Key Takeaways:
● Witnesses often experience distortions, such as blaming, mental filtering, control fallacies, should statements, and the fallacy of fairness, that can undermine their credibility and performance.
● Cognitive reframing techniques, led by experts in psychology and human behavior modification, help witnesses overcome irrational thought processes and focus on presenting clear, factual testimony.
● Witnesses have more control over their testimony than they realize. Empower them to take tactical pauses and ask for clarification when needed.
● Attorneys can validate and address witnesses' frustrations or anxieties, and ensure they approach the deposition with composure to reduce the risk of defensive or argumentative testimony.
● Repeating exercises like listing positive and negative aspects of the case can help witnesses shift focus from a defeatist mindset to a more balanced understanding of their role.