Energy On The Offensive #044 - 7 Witness Preparation Mistakes To Avoid

The success of your case is tied to the performance of your witnesses, which means that while a compelling witness can help you secure a positive outcome for your case, a poor performing  witness can disproportionately impact settlement and trial outcomes. 

Testifying at deposition or trial is an atypical experience for most witnesses, with many witnesses approaching their testimony with unrealistic expectations of success. During a deposition or trial, poor testimony can lead to bad outcomes, including nuclear verdicts. Mitigate risk and achieve superior results by avoiding these seven witness preparation mistakes. 

Why is witness preparation important?

Preparing witnesses for their testimony is a crucial step to ensure positive outcomes. Witnesses who display poor body language, nervousness, or succumb to the fight-or-flight response during questioning can easily make errors that can devastate your case. Effective witness preparation is essential to secure composed and prepared witnesses who will deliver compelling testimony and won't be baited by opposing counsel.

Mistake #1: Witness Emotional Styles are Left Unresolved  

Intense emotions, such as anger, frustration, or anxiety can mentally wear down witnesses at deposition and during a jury trial. While it is understandable for witnesses to be emotional about the experience of testifying, unaddressed or unresolved emotions and the unintended impact they may have on witness performance could result in a nuclear verdict. 

Four specific and high-risk emotional states are prevalent in many witnesses, including overly agreeable, defensive, angry, and numb. Any one of these various emotional behaviors could prevent a witness from giving compelling and credible testimony during a deposition. Identifying your witness's emotional style accurately before deposition testimony is an essential step for mitigating risk and achieving superior outcomes. 

Mistake #2: Witness Preparation is Insufficient

Unexpected testimony can be catastrophic in litigation. Unfortunately, it is all too common for a witness to do well in preparatory sessions where they are not on the record and can call for a timeout or a do-over but then become anxious, confused, agitated, and even panicked when facing opposing counsel. 

Without extensive preparation, witnesses are easily thwarted by their own emotions, leaving them susceptible to making mistakes such as offering long-winded answers that can ultimately be used against them. In addition, traditional witness preparation does not prepare witnesses to counter neuropsychological manipulation, which can hinder a witness's ability to control emotion and cause a fight or flight response.

Mistake #3: Not Enough Time is Devoted to Practice  

The more practice, the more comfortable a witness can become with the process, the less likely they will behave unexpectedly during the deposition. Witnesses need to learn how to truly listen, consider deeply, and deliver their answers truly. To understand these skills, a witness needs to practice them under watchful guidance while receiving timely feedback. These practice sessions are critical for defense teams to identify a witness' vulnerabilities accurately. 

Mistake #4: The Mock Questioning Isn't Realistic  

Rather than informally going over questions and topics, deposition questioning simulations should realistically replicate the process with the same type of pressure that they will experience in the actual deposition or on the witness stand. Effective deposition practice sessions, conducted well in advance of a deposition, can help mitigate future risks by unearthing potential witness issues and allowing time to course correct to ensure a compelling performance. 

Mistake #5: Witnesses Are Not Allowed to Fail  

The last place you want your witness to make a mistake is during a deposition or on the witness stand. Conducting realistic simulations with witnesses to prepare them for those situations also involves allowing them to make mistakes and even to fail. Too often, defense attorneys want to correct a witness immediately, but mistakes can be a powerful learning opportunity. When witnesses are allowed to fail during preparation, they can see what may happen if they refuse to follow the guidance of their legal team and learn from their mistakes. 

Mistake #6: Attorneys Assume Witnesses Understand More Than They Do   

A common mistake made by many attorneys is to overlook how little their witness knows about the litigation process. First, witnesses need to understand how the process works, answering questions such as when their deposition will take place and how long it will last. Witnesses must also learn the case itself and how they fit into the context of the case as a whole. From there, a witness can understand how to testify and apply the guidance they receive through practice sessions and realistic simulations. 

Mistake #7: Witnesses Do Not Understand Their Role

The witness must understand what their role is in the deposition process. They must be trained how to listen, how to process the questions, how to consider their response carefully, and how to deliver an honest answer. Witnesses may frequently try to assume other duties; they may feel it is their role to have scripted lines, persuade opposing counsel, or even win the case. By misconstruing their position, they may attempt to pursue these unachievable objectives. You must teach your witnesses what their role is and what their role isn't for them to provide strong, compelling testimony. 

At Courtroom Sciences, each witness training is developed based on the specific witness, their role and emotional state, and the circumstances of the case. Our psychology experts deliver sophisticated neuro-cognitive training that will leave them poised, confident, prepared, and persuasive. Speak with one of our experts to get started. 

Key Takeaways

●  The success of your case is inexorably tied to the performance of your witnesses.

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

●  Witness emotional styles left unresolved, unrealistic simulations, not allowing witnesses to fail, and witnesses not understanding their role are all common witness preparation mistakes. 

● Courtroom Sciences' psychology-based witness training program will leave witnesses poised, confident, and persuasive.