The brain is inherently wired to defend itself in the face of an adversary, attempting to guard or shield oneself from attack or injury. However, unfortunately, this intuitive use of emotion can work against a witness when that instinct forces them into survival mode in a perceived threat, such as adverse examination or unfortunate case facts. A defensive witness cannot rely on strategic responses learned in traditional witness preparation sessions.

Defensive witnesses may feel that their behavior is protecting themselves, their employer, or defending their actions, essentially defending something or someone important to them. Still, their tactics may have a much different result, allowing them to succumb to manipulative reptile questions, make critical errors, or even derail the case. A witness with a high-risk emotional style is especially primed to deliver defensive survival responses. 

With the outcome of your case closely correlated with witness performance, a defensive witness could leave your case vulnerable to unpredictable situations. Through neuro-cognitive deposition training, Courtroom Sciences can help trial attorneys ensure that witnesses can provide powerful and compelling testimony. 

What are two ways to get improved testimony performance from a defensive witness?

Following a thorough assessment of the witness, cognitive reappraisal skills and practice are the two ways to get improved testimony performance from a defensive witness. Active cognitive reappraisal is a deliberate emotional regulation strategy involving actively reinterpreting a negative stimulus as a neutral one. Once these skills are taught, a defensive witness then needs practice. The more mock questioning done with a defensive witness, the more comfortable they become with the process and the more desensitized they become to the associated emotion.

The Defensive Witness 

While most individuals will exhibit defensive behavior occasionally, defensive behaviors are especially common responses when a person is feeling insecure, anxious, guilty, shameful, or helpless. In these circumstances, the defensive behavior may be an attempt by the individual to convince others that they are a good, likable, or intelligent person, or they may be attempting to justify the actions or decisions. Feeling obligated to protect themselves or their employer, a defensive witness, in particular, may believe it is their job to win the case. 

Defensiveness can be exacerbated when a person feels personally attacked, as a witness might be during a deposition. When a person exhibits defensive behaviors, they will often make excuses, blame others, or try to justify their actions. Defensive witnesses are also likely to try to "explain away" unfavorable case facts. During preparation sessions, defensive witnesses frequently become frustrated and make comments such as, "I just need to explain how this works" or "you guys don't get it."

Suppose emotional regulation skills are not put into place. In that case, these behaviors will inevitably cause significant problems during a deposition or trial, where the witness is doubtless to respond from a place of emotion rather than rational cognition resulting in poor, ineffective, and potentially damaging testimony. In addition to verbal defensive behaviors, sensing adversity, a witness's posture may also appear defensive, causing them to regress into a fight or flight posture. 

While these witnesses may or may not believe they have done something wrong in their attempt to defend themselves or others, the defensive witnesses' behavior may cause them to appear oppositional or argumentative and could unintentionally make them appear guilty. 

Preparation Strategies for a Defensive Witness 

Manipulative questioning tactics used by plaintiff attorneys, including reptile attacks, can disproportionately affect witnesses with a high-risk emotional style, such as a defensive witness. These witnesses are more susceptible to becoming baited into fight or flight response during deposition testimony, causing them to appear unreasonable, agitated, or condescending. They could leave your case vulnerable to unpredictable situations.

For defense attorneys, mitigating this high-risk emotional state can be done through the following four steps:

1.  Identifying the pre-existing emotion

2.  Putting emotional regulation skills into place 

3.  Learning cognitive reappraisal skills 

4.  Continued practice and utilization of learned skills

A defensive witness's ability to control emotion depends on having the capacity to modulate negative emotional responses through cognitive-emotional strategies. Active cognitive reappraisal is a careful, deliberate tactic where a witness learns how to reinterpret negative thoughts in general and negative stimuli within the deposition environment. More specifically, to prevent the brain from an impulsive, spontaneous reaction to a negative stimulus. During a deposition or trial, this strategy would 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.

Courtroom Sciences knows that the success of your case is tied to the performance of your witnesses. Considering each witness's specific emotional state and the circumstances of the case, Courtroom Sciences provides psychology-based witness training that will allow them to provide strong and effective testimony when it matters the most. Speak with one of our experts to get started. 

Key Takeaways

●  Defensive witnesses may feel that they are protecting themselves, protecting their employer, or defending their actions during testimony. 

●  Defensive witnesses frequently become frustrated, make excuses, blame others, or try to justify their actions.

●  Mitigating the behaviors of a defensive witness can be done by identifying the pre-existing emotion, putting emotional regulation skills into place, learning cognitive reappraisal skills, and continued practice and utilization of learned skills.

●  Courtroom Sciences' psychology-based witness training program will allow a witness to be effective while preventing them from making errors that can devastate your case.