COMMENTARY: Helping witnesses visualize their testimony

By Brian J. Carney
BridgeTower Media Newswires
 
BOSTON — Every aspect of trial preparation is important. But just because you spend time preparing a witness, don’t assume the witness will succeed when called to testify.

How can a trial lawyer ensure that a witness is fully prepared? Use visualization.

Preparing your witness with visualization

Even for seasoned trial lawyers, witness preparation can be challenging. I once had a witness get so nervous that she could not recognize a photograph of a street that she drives down every day.

She had no problem recognizing it earlier that day, but under the pressure of the witness stand, she couldn’t identify the location. She was not lying, nor was she forgetful. She just couldn’t keep her thoughts clear.

The truth is, I had not properly prepared her to testify despite having spent time with her. I hadn’t provided her an anchor for her testimony, something she could fall back on under stress. I had not helped her to visualize her testimony.

Being a witness

Being a witness is not an easy job. A witness has to:

• remember the facts
• be engaging, but not overly emotional
• answer unexpected questions
• keep answers congruent
• remain calm

Whether lay or expert, testifying as a witness is stressful. Basic information can become hard to remember under the scrutiny of a camera at a deposition, or on the stand before a jury.

Being a witness is hard to do well, especially the first time on the stand. Even for seasoned expert witnesses, it can be challenging. There are, however, tools and techniques that a trial lawyer can use to help.

Making a habit of preparation with visuals

Helping a witness testify better starts with spending the proper amount of time preparing them with the facts of the case, and then reviewing what to expect on cross-examination.

One good approach is to develop custom visual aids specifically designed for the witness to understand the issues central to the testimony.

Custom visuals aren’t just for use at trial; they can and should be used throughout litigation. A good visual will make complex information simpler to comprehend. It eases communication with every audience, from the client to the mediator, arbitrator or judge to the jury — and, don’t forget, the witness.

Well-designed visuals improve the understanding and focus of the witness and act as an anchor to help the witness remain in control under stress.

Visual preparation of the lawyer

To prepare a witness effectively, trial lawyers need to thoroughly understand the evidence themselves. Developing visual aids to illustrate the evidence helps the litigator become educated in a way that reading documents alone can’t. Visual preparation helps the trial lawyer:

• Prepare witnesses on the evidence and processes at issue
• Teach the trial team the specific arguments and positions of opposing parties
• Illustrate for the client the nuances, strengths and weaknesses of the case
• Ask better questions during depositions
• Better cross-examine opposing witnesses
• Present one’s own expert as a teacher of critical facts
• Control and focus lay witnesses on only the relevant details
• Summarize the case to a mediator, arbitrator or jury
• Help control testimony

An often-overlooked benefit of visual aids is their ability to control difficult witnesses. Some witnesses are so personally involved in the dispute that emotions and feelings overtake their ability to stay focused on the relevant facts.

Some become overwhelmed by being center stage. Some witnesses are timid and don’t say enough; others say too much. Many believe they know what the jury needs to hear, regardless of the questions being asked.

By providing a series of visuals for a witness, the well-prepared trial lawyer has laid out talking points. When the witness prepares with the illustration, he can remember the information visually and testifying becomes much easier.

When asked a question, the witness has a visual map of how to answer. If the answer can be found within the prepared visuals, then he can, and should, answer congruently with that visual. If a question doesn’t correspond to a memorized visual representation, then the witness can ask for clarification or rephrasing, or answer either “I don’t know” or “I don’t recall,” when appropriate.

By providing a visual map of answers to potential questions, even the most uncontrollable witness can be taught to testify well. Visuals help the witness anticipate areas of questioning on cross-examination. Learning the evidence visually also helps the witness stay focused and answer readily unexpected questions.

Punctuating the facts

How much of the evidence should be visualized? A basic rule of thumb is to start by determining which witnesses are necessary to win the case.

The goal is to provide for each key witness at least one visual representation. Each graphic punctuates the major points that the trial lawyer intends to elicit. Effective visuals will make the testimony of a witness simpler, clearer and more memorable.

Visuals help in other ways, too. Customizable interactive applications can provide an expert witness with visuals that have options baked right in. When an expert’s testimony involves a range of possibilities, that range can be shown to the jury through a dynamic illustration or an animation.

Visuals help to engage the jury, enhancing the witness’s credibility as a teacher of the facts.

Summary

Being a witness is not easy. By designing custom visual explanations, a trial lawyer can help each witness through this difficult process and can be confident that each witness is prepared to testify.

Custom visuals for each witness will anchor, strengthen and ensure the best possible version of the testimony.
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Attorney Brian J. Carney is president of WIN Interactive, a multimedia company that works with trial lawyers. He can be contacted at b.carney@wininteractive.com.