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Witness This

Behavioral science in the courtroom.

Serious athletes make every effort to go from good to great in their sport, and are endlessly seeking a competitive edge over their opponents. As such, top athletes firmly believe in getting help from special people with special skills, such as a sports psychologist, to rocket their game to the next level.

Attorneys are no different. Top attorneys have an interest and make an investment in behavioral science and knowledge. In fact, experts in behavioral science can often make the difference between winning and losing in the courtroom -- pre-trial research is vital.

Experts in behavioral science can assist attorneys across all areas of litigation, including testing one's case in a mock trial to reveal how multiple groups of people will evaluate the case. For attorneys, a key facet of preparation is having an empirical sense of what a jury is likely to think of your case and witnesses.  With this knowledge in hand, attorneys can be more confident in their message, thus putting them in a better position to win.   

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Dr. Steve Tuholski brings his extensive behavioral science experience, insight, and value to his work assisting attorneys across the nation. I interviewed Dr. Tuholski to gain more understanding of this essential field. He provided a fascinating look at his work, including the psychology of witness testimony. Here's my interview with Dr. Tuholski:

JA: What makes a "good" trial witness?

ST: Jurors often judge witnesses more on their behavior on the witness stand than they do in terms of the content of their testimony.  A good witness is someone who delivers testimony in a consistent fashion across both direct examination by their own attorney and cross-examination by opposing counsel.  By comparison, a bad witness is one that may seem at ease during direct examination, but very much tense, guarded, short-tempered, etc. when examined by opposing counsel.  Jurors pick up on these differences, and often reach the conclusion that "the witness wouldn't appear anxious on cross if they were telling the truth."

JA: How important are witnesses in affecting trial outcome?

ST: The quality of witness testimony, whether it is from a fact witness or expert witness is probably the single most determining factor in a trial's outcome, particularly in complex litigation.  As the complexity of the litigation increases, it becomes more difficult for individual jurors to get a firm grasp on the facts and law at hand, and as such, they overly weight the "performance" of witnesses when making their verdict judgments.

JA: Given how very few witnesses have a great deal of experience testifying, how can they best prepare for trail?

ST: The old adage, "practice like you play" is key here.  A non-experienced witness isn't going to get much better by simply reading about how to communicate or doing a "run through" with their attorney.  It's important for witnesses to engage in live-fire mock exercises, where they get a sense of what a real direct and cross-examination is like.  In some instances, it's appropriate to do mock testimony in front of a set of mock jurors so that the witness can get an even better sense of the trial experience.  Practice doesn't make perfect... perfect practice makes perfect.

Also, even "expert witnesses" need to consider their behavior on the witness stand.  In a typical case, both sides may bring in experts to explain some kind of technology, procedure, damages, etc.  Expert witness testimony varies along a continuum of "technical/academic" to "Mr. Wizard".  Expert witnesses that rely a great deal on jargon and tech-talk are often perceived more poorly than experts who have that Mr. Wizard quality of being able to explain complex material to a lay audience without talking down to them. 

JA: How important are witnesses' non-verbal communications?

ST: Non-verbal communication is crucial.  I've spoken with thousands of jurors after real and mock trials, and it never ceases to amaze me how critical they can be of even the seemingly most insignificant non-verbal miscues.  The most common problems that jurors cite that they interpret in a negative way in terms of witness credibility: poor eye contact, "fidgeting"/anxious-looking behavior, and inconsistent demeanor when responding to different counsel.

JA: How can witnesses behave so that jurors identify will with them?

ST: One of the simplest things that a witness can do is to simply make eye contact with the jury while they are testifying... but it's very difficult!  Consider a normal communication process where someone asks you a question.  What do you do?  You answer directly to that person.  But in trial, the answer has to be given to the jury, and that can create an unnatural feeling for the witness and for jurors if the witness over does it and just stares at the jury.  Attorneys realize this, and you'll often hear an attorney on direct examination say something like, "Dr. Afremow, please tell the jury..." which is a cue for you to answer the question to the jury.  Rarely will you find a skilled attorney phrase anything about the jury in their question during cross-examination, unless it's something snarky like "do you expect this jury to believe...".  They appreciate that by disengaging eye contact and attention with the jury, the jury will feel isolated and at some level hold that against the witness.

JA: How can witnesses deal best with pre-trial jitters?

ST: During witness training activities, I strive to bring attention to their anxiety and what triggers their anxiety.  We work on deep breathing, muscle relaxing and other methods to help reduce that anxiety, and this is something they can also do before taking the stand.  It's also important for witnesses to get a good night's sleep before testifying.  I suggest that if a witness normally works out/jogs in the morning that they maintain that routine. 

JA: How are trial witnesses like athletes?

ST: The Q&A process during testimony is similar to that of a pitcher (attorney) dueling a batter (witness), on cross-examination.  The attorney will do their best to trick up a witness by dictating the pace of the examination (think "quick pitching") and by mixing up topics for the witness to respond to (think, "mixing up pitches and locations.").  A good attorney knows that the key to successful cross-examination is to get a witness out of their comfort zone, and as such, a good witness has to be very attentive to what an attorney is asking them.  Often, anxiety leads a witness to start formulating an answer before the full question has been posed (think, "getting fooled by a change-up") and their answer often opens the door for a new line of inquiry that will be even less comfortable.  In my practice, I work with witnesses to actively listen to question, take a moment, and then answer (think, "picking up the pitch" and "situational hitting"). 

For more information about behavioral science and how it is applied to litigation, please visit www.tuholskiconsulting.com

Jim Afremow, Ph.D., L.P.C., is a psychologist at the Health and Sport Psychology Clinic at Arizona State University.

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