There are communication stumbling blocks to any public speaking event, be it speaking in front of a group of people or testifying during deposition or at trial. Each comes with its own level of stress and anxiety for anyone and for a variety of reasons. Understanding the source of a person’s anxiety can help a witness begin to keep his fears at bay (they really never go away) and focus on the content of his testimony. The potential sources for anxiety listed below are certainly common for the newbie witness but don’t be lulled into thinking that an experienced witness doesn’t have anxiety – they do. They just know how to hide it a bit better, but at some point, it emerges as “poker tell” (a facial tick, stumbling of a words, inordinate non-verbal behavior, etc.). If a witness is not responding to your prep, you might consider one of the following reasons for the source of their anxiety. Please note that many of these are not mutually exclusive, and instead overlap with each other.
Letting people down/losing the case.
Many witnesses arrive to their prep sessions believing they are responsible for carrying more water than is truly expected. This usually manifests itself through worry about losing the case for the side that called them. This is particularly true of corporate witnesses, 30b6 or not. Make sure the witness knows what their specific role is and that it isn’t to carry the entire case to the finish line.
Afraid of losing their job.
This concern ties for first place with the previous bullet point. Company witnesses (salesmen, managers or even VPs) often are nervous about testifying because if they say the wrong thing, they are afraid of being fired. While in most cases as a lawyer you can’t promise the witness their job will still be there, this is a serious concern that needs to be addressed to help the witness realign his focus from the anxiety to the content of his testimony.
Afraid to make a mistake.
Making mistakes happens all the time and every witness will make one. Teaching a witness where the potential issues are and practicing answers for them will help her be prepared as well as reduce the chance of making a mistake. Also, if she should make a mistake, be sure to teach her ways she can correct it on the record. Much anxiety exists because witnesses don’t know the strategies to fix what they are concerned about. Providing examples of such fixes helps reduce anxiety.
Looking stupid/Looking incompetent/Embarrassing oneself/Being judged or blamed.
Witnesses who want to do a good job also want to put their best foot forward. However, they are so concerned about how they will be perceived that they start exhibiting verbal and non-verbal behaviors that are perceived as reducing a witness’s credibility (See Part I and Part II of Characteristics for Improving the Credibility of your Witness). Thus, their beliefs manifest into self-fulfilling behavior. In one case, I worked with a company manager of a department who was self-deprecating and had a nervous laugh in virtually every response to a question. We stopped the prep session and started to discuss his concerns, much like a counseling session. We learned that he was concerned that the results of his performance (and he assumed they would be negative) would get back to his department and his reputation would be adversely affected. He saw the same thing occur with his predecessor who no longer commanded the respect of his staff and was concerned the same thing would happen to him. It was such a concern to him that it was manifesting itself into unconscious nervous behavior. This reasoning had nothing to do with his testimony and was an agenda that was very specific to him and his situation. Without asking the right questions, we may have never discovered the source of his anxiety, but once we did, his behavior improved, as did his credibility when testifying.
Taking the case personally.
I once worked with a witness who believed the case was entirely his fault and the plaintiff wouldn’t have filed the lawsuit had it not been for him. True or not, this belief was a significant barrier for him to keep his cool. He angered quickly on practice cross examination, and even when role-playing with his own attorney for his defense testimony. Counsel thought he was the proverbial bad witness without the witness “gene.” But once we pulled him aside and asked him some questions to get to the source of this behavior, the witness had a cathartic moment when he expressed his frustration over the lawsuit and how it was entirely his fault. Once this breakthrough occurred, he was able to control his emotions, focus on his key message points and improve his credibility. At trial, based on exit interview with the actual jurors, he was calm when testifying which garnered credibility with them.
Revealing private information.
Some witnesses feel it is an invasion of privacy when engaging in a deposition when the opposing attorney can ask virtually anything, especially personal information. I have run across witnesses who were offended (and showed it by their tone of voice and demeanor) by the mere suggestion that they would be asked about their compensation structure, where they live or the names of their children. To them, this information was irrelevant to the litigation and shouldn’t be asked. I have recently worked with another witness who was concerned about the timeframe of events in question, as her mother had passed away during that time and she understandably didn’t want to discuss this very personal and emotional event with opposing counsel.
While these are the primary reasons, there are many more that are witness-specific that could impact a witness’ presentational style and consequently affect their credibility. And, there isn’t one solution available that will reduce a witness’ anxiety about testifying for deposition or trial. Each person is different; learning what is troubling a witness and working to resolve that issue is critical to improving a his or her performance.