Julie Campanini
BridgeTower Media Newswires
Witness preparation and training is critically important. After all, evidence comes through witnesses. Bad witnesses, if they are prominent, can tank a case.
Knowing where you stand with your witnesses and how they can help or hurt a story cannot be overstated.
Step 1: assessment
Assessment is the opportunity to determine a witness’s strengths and weaknesses, concerns and fears, factual knowledge, and level of anxiety and how that manifests. It is also a chance to learn how adept they might be at testifying.
Trial attorneys often forget that most people, including witnesses, have never participated in a trial, and many have never even been in a courtroom.
How will Miranda from accounting feel when she figures out the scrutiny she is under to “perform” on the stand? Is Miranda fearful of losing her job, or worried about an email she may have sent months ago?
In my practice, I like to spend the better part of the first hour chatting and building a rapport. Questions I ask include:
• How are you feeling about your impending testimony at trial?
• Have you ever been in a courtroom or participated in a trial?
• Were you ever a juror? If yes, how did you evaluate witnesses?
• Do you know your role in this case and why you are being called to the stand?
• What do you think the absolute worst-case scenario would be as it relates to you personally in this trial?
• What areas of your testimony do you feel most vulnerable about?
• How do you see yourself testifying (i.e., do you think you are confident/capable/credible, etc.)?
Some of these seem irrelevant, but they all go to a witness’s state of mind and ability to support the trial goals.
During the assessment hour, I look at a witness’s dexterity.
Can he think quickly and talk slowly? Can he explain himself without coming across as obstreperous? Can he think ahead a bit during cross-examination, or is he better served thinking only about the question at hand?
Does he stall or say “um” too many times? How is he able to handle complex, multipart questions?
Many a witness has been deemed not credible by a juror for what I would call normal speech patterns.
People have a way of talking in everyday conversation that is often not well-received at trial. Jurors have expectations of witnesses that few are able to meet.
That said, jurors tend to be quite forgiving.
Witnesses do not have to be “perfect,” but jurors’ expectations align with a witness’s role. In other words, the CEO, upper manager or plaintiff must perform better than someone with less involvement in the case or someone with less knowledge.
A large part of what impedes a witness’s message, whether it is in a deposition or at trial, is anxiety. Even if a seasoned witness says he doesn’t have anxiety, I rarely believe it.
Why? Because it is simply anxiety provoking to testify. The witness is being scrutinized, judged, stared at, and generally looked upon as suspect for often no reason other than that person is on the witness stand.
No one likes that; it is highly uncomfortable. Anxiety can take over and prevent a witness from testifying cleanly, taking away from the message of the testimony.
For example, if a witness, like Miranda from accounting I mentioned earlier, thinks she might lose her job after she testifies, that could cause her extreme anxiety, which will show on the stand.
Maybe she will cry. Maybe she will freeze. Maybe she will try not to say anything particularly definitive and come across as evasive. It is critical to know this before the deposition or trial.
Other ways anxiety manifests include: anger, sarcasm, flippancy, inappropriate laughter, fidgeting, sighing, talking too quickly, talking too slowly, having memory difficulty, sweating, crying, feeling nauseated, being aggressive, acting arrogant — really anything that interferes with clear and credible communication.
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Julie Campanini is a senior trial consultant at Magna Legal Services. She can be contacted at jcampanini@magnals.com.
