It’s a universal experience. Nearly every attorney who has ever sat down for witness preparation before a deposition, or before trial, to provide clear instructions and guidelines about what to say/not say, or what to do/not do, has at some point found himself asking:
“Why didn’t s/he listen to me?!”
Recognize Testifying Is an Unnatural Act
Testifying is an unnatural act. We – and by “we” I mean civilians – don’t speak entirely in questions and answers. We have conversations. We nod. We assent. We interject. We discuss.
So, for the uninitiated, a deposition might as well be held in a foreign language. It’s a constraining environment, one that leads lay witnesses to universally describe the experience as “frustrating,” which creates unnecessary anxiety. And because it’s constraining, and confusing, we see exchanges like this (taken from an actual deposition transcript):
Q: All your responses must be oral, okay? Where did you go to school?
Q: Is your appearance here today pursuant to a deposition notice I sent to your attorney?
A: Um, no, this is how I dress when I go to work.
So what do we do to help witnesses help the case?
Address the Witness’s Agenda FIRST during Witness Preparation
If you want a witness to follow your instructions, you have to first make sure the witness is ready to listen to you. And that means addressing their agenda first during witness preparation. That is, before you give out instructions, find out how the witness is representing the experience of testifying to him/herself. So, yes, that means first asking, “How do you feel about this experience? What are your concerns?”
In response to those questions we hear a number of pretty standard replies:
• “I’m angry that I even have to be here.”
• “I’m frustrated that it’s taken this long to get here.”
• “I’m afraid I’ll be made a fool of.”
• “I’m afraid I’ll forget important details and it’ll get twisted around.”
• “I’m afraid I’ll lose the case.”
Therefore, the first part of witness preparation is assuring the witness that the success of the case does not rest solely on his/her shoulders, that everyone has a role in the story and in
his/hers is only one piece of the larger puzzle. It also can involve helping the witness explore and explain why he’s glad to be here. Most importantly, the first part of witness preparation is making sure the witness feels heard. It’s human nature: when we feel heard, when we feel validated, we’re more open to listening.
If you want the witness to listen to you… listen to the witness first.
By: Robert Gerchen, Senior Consultant