Testifying at deposition or trial is an atypical experience for most witnesses. Many witnesses approach their testimony with unrealistic expectations of success. Without proper witness training, the mismatch between an inexperienced witness against an experienced trial attorney can quickly spiral out of control, particularly when the witness allows their emotions to be provoked. Poor testimony during a deposition or trial can lead to poor outcomes, including nuclear settlements and nuclear verdicts.

The immense magnitude of witness performance on settlement and verdict results necessitates that witness preparation is one of the most fundamental and essential tasks a trial attorney performs. Yet, traditional witness preparation does not prepare witnesses for how to counter neuropsychological manipulation. Courtroom Sciences provides psychology-based witness training designed to prepare even the most complex and dubious witnesses, leaving them poised, confident, and persuasive. 

What topics do attorneys forget to cover during witness preparation?

During witness preparation, many attorneys often overlook how little their witness knows about the litigation process and their role. Witnesses need to understand how the process works, the case itself, and how they fit into the case context. From there, a witness can be taught how to testify and apply the guidance they receive through practice sessions and realistic simulations. 

Overcoming Compromising Documents   

There is a quote famously attributed to Alexander Graham Bell in which he purportedly stated, “Before anything else, preparation is the key to success.” The key to dealing with bad or compromising documents is sufficient preparation. 

Typically, these bad documents are some kind of correspondence, such as an email that a witness sent or read. Knowing this document will likely be presented during a deposition or trial, it’s important to teach the witness how to respond. Part of that preparation is simply repeated practice. The more practice that can be done, the more comfortable a witness can become with the process, and the less likely they are to behave unexpectedly during the deposition. 

Witnesses may often feel embarrassed by these bad documents, and they may wish that they could take them back. Part of the witness preparation can include helping them understand that everybody makes mistakes and that they simply need to take responsibility for what happened. Without extensive preparation, witnesses are easily thwarted by their own emotions. This leaves them susceptible to making mistakes, such as offering long-winded answers that can ultimately be used against them. These practice sessions are critical for defense teams to accurately identify a witness’ vulnerabilities. 

Collaborating With Former Employees  

One of the most challenging witnesses that a defense attorney may have to work with is a former employee, particularly one that left under bad circumstances. It’s common for former employees to become a key factor in ongoing cases. These difficult witnesses are often both resistant to preparation sessions and likely to become argumentative during their testimony. Unfortunately, these witnesses may also have a personal motivation to torpedo your case, which is precisely what you don’t want. 

The first step is likely to determine whether you can represent that witness jointly with your client, as sometimes you can and sometimes you can’t, depending on ethical rules. Regardless of whether you or a different attorney represents them, it is key to impart to the witness that, in this one case, they are aligned with their former employer despite leaving the company on bad terms. 

If you can’t represent the former employee, it’s often in a company’s best interest to offer to pay for a different attorney to represent them. It may even be easier to have a productive conversation when the witness feels they have someone they can trust, someone that is working for them. 

The Need for a Strong Plaintiff’s Counsel During Mock Depositions  

While doing mock deposition questioning, you want to show witnesses what opposing counsel will be like. Suppose you have an opposing counsel who becomes condescending and sarcastic, pounds on the table, or displays high levels of aggression. In that case, this can be incredibly off-putting to the witness. This behavior could trigger an emotional response in a witness already sitting in a very stressful environment, causing them to behave unexpectedly. 

During witness preparation, it’s critical to match the intensity and persuasiveness of opposing counsel and show how they may act and behave. This can also help prepare these witnesses for the psychological attacks they will likely face. 

If opposing counsel is more laid-back with their questioning, trying to lull the witness into feeling like this is a conversation with a friend, practice that type of questioning. On the other hand, if they are likely to face an aggressive opposing counsel who delivers their questions rapidly, it will be essential to demonstrate that type of mock questioning. The goal is to give the witness as close to a live exercise as possible.

Preparing witnesses for their testimony is a crucial step to ensure positive outcomes. At Courtroom Sciences, each witness training is developed based on the specific witness, their role and emotional state, and the circumstances of the case. Learn more about witness training with Courtroom Sciences.

Key Takeaways

●  Preparing witnesses for their testimony is a crucial step to ensure positive outcomes.

●  The key to dealing with bad or compromising documents is sufficient preparation. 

●  One of the most difficult witnesses that a defense attorney may have to work with is a former employee, particularly one that left under bad circumstances.

●  During witness preparation, it’s essential to demonstrate how opposing counsel may act and behave.

●  Witnesses need to understand how the process works, the case itself, and how they fit into the case context.