Spot a Problem Witness Before It’s Too Late

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You’ve probably heard the old saying: familiarity breeds acceptance. When you spend time with someone you tend to overlook or accommodate their idiosyncrasies, bad habits or “warts.” For example, if your client has a habit of interrupting you it may be annoying, but you dismiss it and move on. However, come time to testify, what you’ve overlooked, or maybe not have even identified, could now sink your case.

Here’s an example of the challenge faced by top litigators. I was asked to work on a securities and mail fraud case. The lead attorney brought me in just a couple of weeks before trial. His team had a strong defense. But after months and months of building toward trial, the attorney knew he was in the weeds. One of the things he wanted was an objective view of how the jury would react to his client. Although the client hadn’t said a word, shortly aft er the meeting started the attorney turned to me and asked, “What’s your evaluation of our client?” My reply, “You’ve got a problem.” Nice guy, smart, successful, likable. But he had a veneer of arrogance. I knew the jury would eventually spot it and that would make it tough for them to believe he was a naïve victim of the fraud.

When you’re hip deep in a case, how do you take a fresh look at your witness(es)? In this article, I share a practice I’ve developed over the years to identify problems that torpedo witnesses. You already know the tried and true checklists: review the facts, tell the truth, keep it short, dress nicely, etc. This article tells you what’s not on the checklists. Here is a 30-minute (or less) assessment that can help you spot potential problems so you can improve testimony and your odds of prevailing.

Who Should Assess Your Witness?

I strongly suggest you have a colleague or paralegal do the assessment. You want someone who does not know the case or the client. You want brutal honesty. If that’s not possible, then you must get out of the role of attorney and get into the role of observer. You are there to watch and listen like you’ve never seen this person before.

How to do the Assessment

Engage in a casual conversation. This is intended to see how your witness behaves organically. What do they naturally do? How do they speak, listen, sit, act, etc.? The assessor needs to be as neutral and bland as possible. I’m very outgoing, empathetic, and have a wicked sense of humor. But when I’m conducting an assessment, none of that comes into play. I need to see who they are, not who they are in reaction to me or my sense of humor.

Have a printed list of the five key areas so you can take notes about problems, as well as strengths.

Five Key Areas to Assess

No. 1 – Listening skills.

Does your witness actively or passively pay attention? Do they routinely listen all the way to the end of the other person’s sentence? Do they interrupt? People think three times faster than they can talk. Which means that most people are already formulating a response before the other person is finished talking. That can be deadly in deposition or cross.

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No. 2 – Verbal skills.

How articulate is your witness? Are they clear and concise when they speak? Or do they go on and on and on? Do they speak in first person or third person? Does their language engage or push away? Do they use jargon or industry-specific insider language?

No. 3 – Body language.

This is a huge. Body language is 12 ½ times more powerful than our words. Yes, that’s 12 ½ times! Every nuance in body language telegraphs a message to opposing counsel, the judge or the jury. Research shows that in a one-hour negotiation, you give off 600 body language signals. I’m betting the same is true for testimony. Be meticulous at watching for subtle signals like leaning away, covering up their mouth, arms crossed, dropping their head, furrowed eyebrows, little eye contact, etc. Videotaping your witness can help them see what’s not working so it can be corrected.

No. 4 – Attitude. Does your witness give off an air of superiority and contempt? Will the jury see someone who is cooperative or intransigent? Are they confident or intimidated?

No. 5 – Disconnects. Pay particular attention to your own internal reactions to your witness. Is there anything about your witness that seems a little off or not quite in sync or that gives you pause? What would most people expect from your witness versus how they actually come across? Would most people expect a nurse to be warm and caring? If she seems cold, that’s a disconnect. Would people expect a CEO to talk like a Valley girl? Would a truck driver show up in a designer suit? Would a surgeon have a shaky voice or shaky hands? The reality is that witnesses don’t fit into neatly constructed stereotypes. But if you know where the disconnect is, you can address it straight on, get it out of the way, and move into great testimony.

In the coming months, I will show you how to work with your witnesses to solve these problems. Or you can check out my video blogs at Deborah Johnson, MC

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