Scared, angry, worried, talks too much, deer-in-the-headlights, or agitated. You probably routinely run into these witness behaviors when you’re embroiled in high-stakes or high-risk litigation.
It’s frustrating. I know. Most clients are novices in this process and simply don’t have the skillset to do a great job at hearings, deposition or on the stand. My experience has shown that it doesn’t matter whether it’s civil, criminal or family law.
A few years ago, I was working with an ex-professional athlete. It was a criminal case and he was – to be polite – a hot mess. He was angry, bristling, tight and defensive. So, how could I get him from there to calm, concise and confident? The linchpin was building his confidence, showing him how his athletic skills would serve him well in the courtroom. Once he understood that his natural ability to focus in the face of 60,000 screaming fans and bruisers trying to take him down, he literally changed before my eyes. All of his sizzling, negative body language melted away. Then we set to work on how to deftly handle cross-examination. This gave him the skills and therefore the confidence to do very well on the stand. The outcome: 20-minute deliberation, not guilty, the jury said they loved him.
CONFIDENCE AS A FOUNDATION
The good news is that no matter how ragged your witness may be, you can transform these problematic behaviors, or at least diminish them. Because it’s not about the behaviors, as such. It’s about an underlying lack of confidence. My professional athlete needed to know – and feel – that he could do this.
Let me share with you how I help witnesses gain confidence and thereby change how they show up for testimony. I call it the Confidence Triangle. It comes from years of experiences in my eclectic career, plus new research that shows people can learn to be more confident. Anywhere your witness has a lack of confidence you can cultivate it using the following three steps.
STEP ONE: LEARN
This first step is second nature to most attorneys. You know exactly what makes up good testimony and where the potential hazards are. It’s transferring that knowledge to your witness that can get tricky. I hear many seasoned attorneys say they “tell” their witnesses what to do. Remember that only about 40 percent of people are auditory learners, who learn a new skill by listening. The other 60 percent of the population learns best by doing or seeing. So, make sure you “show” them what good testimony looks and sounds like.
Also, convey how important their nonverbal communication is. More than 90 percent of your witness’s impact is about their nonverbal, that is, their body language, eye contact, tone of voice, etc. This is where confidence plays a critical role. You want to help them learn the skills that allow them to feel confident about their ability to deliver powerful testimony that will have a positive impact.
STEP TWO: DO
It’s not enough to know something. I joke that you could spend hour after hour telling me how to swing a golf club. I could understand every word you said, yet I could not do it properly.
Once your witness knows what to do, they must practice doing it. When I have a witness with a specific challenge, I drill the new skill. For example, the witness talks too much or rambles. I spend time to develop the skill of answering briefly. At this point, I focus only on developing the skill, not the content of their testimony. “What did you do on your last vacation?” Their answer could be five minutes long (sigh!). Then I make them cut it down. Then cut it down again. And again. Next soft ball question. Repeat. Once they get the hang of brief answers I always ask them how it feels. Often they will tell me that it’s actually a relief and they feel more relaxed. They are more confident in their ability to testify well.
In the case of my professional athlete, he was struggling with the concept of pausing before answering. We swapped roles. He was the prosecutor; I was the witness. He’d ask; I’d pause and then answer. After the third question, I saw his eyes light up. He needed to see and feel the cadence of pausing before he could do it. Don’t underestimate the power of modeling the behavior you want from your witness.
STEP THREE: REVIEW
Master teachers tell me that this third step in the learn-do-review cycle is critical. You have to help your witness differentiate the subtleties of what works and what doesn’t. Again, it’s not just what they know, it’s imperative that they can do it well. Repeatedly. Especially under the stress of testimony.
One of my most powerful tools for helping witnesses is to videotape them. Although they groan about seeing themselves on tape, it is a powerful tool. In a divorce case, my witness was doing well until she started to talk about her soon-to-be-ex. Her body language shifted dramatically … leaning back in the chair, flailing her arms, sounding helpless. When she saw herself on the videotape, she leaned into the computer screen and proclaimed, “That woman is pitiful!” Exactly.
Only after the new skill is developed should you then apply it to the witness’ actual testimony. When your witness doesn’t do well answering a question, stop, correct them briefly, then back up, ask the question again and have them do it the right way. I often see attorneys correct the witness then move on the next question. It’s imperative that their last experience is of doing it correctly.
These three simple steps will help your witness gain the confidence it takes to be an asset to your case, no matter how tough the litigation. Deborah Johnson, MC