Trial Magazine

If you prepare your witnesses for their deposition or trial testimony like a lawyer, they probably will sound like a lawyer. Taking them away from their natural way of thinking, speaking, and acting can be disastrous. The jurors are the ultimate audience, so consider each response with them in mind. As a practicing psychologist for more than 15 years, I’ve found it useful to take techniques from that field and apply them to witness prep.

At the beginning of the prep session, ask them to state all their concerns, and listen quietly and fully to their responses.

Listening. Most lay witnesses are nervous and in the dark about the process and their role. At the beginning of the prep session, ask them to state all their concerns, and listen quietly and fully to their responses. Do not be dismissive of any concerns, which are very real for them and, to the extent they go unresolved, can affect their testimony.

Repeat what the witnesses said. Use their words; don’t ­paraphrase. Write down each concern, and check periodically to be sure each one has been addressed fully.

Modeling. I have found that many people learn well by observing someone modeling a response or behavior. But when you do this, use words that are theirs, not yours, or the testimony will seem inauthentic.
Modeling works best after witnesses have answered questions on their own for at least one hour. Otherwise, they won’t have enough time to do it on their own and learn from their mistakes. You also risk witnesses believing that you intervened because they are doing a bad job.

Have another attorney or an assistant question you; then, without commentary, give your answer. The first time, do it for four to five minutes. Then ask the witnesses for observations before you offer comments. Listen carefully, because their comments will give insight into what they perceive as their weaknesses. File those away to be addressed later. Try to limit your feedback at this point. Then start the process again—with the same questions or a new set of questions. After a few rounds, return to your regular preparation.

Learning. Start preparing your witnesses a month before their testimony in multiple, shorter sessions. On the first day, discover your witnesses’ concerns, give a detailed explanation of what will happen the day they testify, and tell them what the other side is hoping to get from their testimony. Follow that with a short amount of questioning.

A week or so later, conduct 15- to 20-minute Q&A sessions and follow with feedback. Let the witness self-critique, and then you provide no more than three comments per round. Mention only your most significant concerns. Continue these sessions until the witness becomes more ­confident. Start with cross-examination and work on direct after the witness has achieved some proficiency.

At about the third session, video may be helpful to build the witness’s confidence further. After taping a 20-minute session, play back the first Q&A, then let the witness critique the response. It may be better not to say anything unless there is a glaring mistake. Review the entire session this way. Next, replay and listen to the question only, then pause and let your witness give the answer. Then play the “old” answer to show how much the witness learned. Praise goes a long way toward improving performance.

Don’t give “instruction” the day of the testimony. Nerves are running high, and your witnesses may think you are worried or lack confidence in them.

Accessing emotions. It takes time and skill to help someone access emotions related to a serious event or injury, and at that moment, the person releases the full reservoir of emotions. That’s when the person starts telling the story.
Have your clients think about what they will say when asked how the incident has affected them. Suggest they take 10 minutes alone to focus on how they have been changed, and ask them to make a written list. At your prep session, ask what is on the list, but do not talk about it. Explain that you don’t want them to go through this painful process twice but that you want to be sure they have some clarity on how they have been impacted.

Using psychological techniques in prep will make witnesses feel more confident, comfortable, and prepared.

Jaine Fraser is a trial consultant at Trial Psychology Institute in Dallas. She can be reached at jaine@trialshrink.com.