In my younger years as a newbie jury consultant, I worked with Dr. Phil McGraw – if you didn’t have an opportunity to work with him in the pre-Oprah days, you may know him as “Dr. Phil.” Phil developed a reputation for being fairly blunt and “telling it like it is.” Some of his quirky comments became known as “Philisms”, and surprisingly (or not so surprisingly), there are even websites dedicated to these sayings. (And a funny YouTube video compilation for those wanting a few seconds of comic relief.)
But not every Philism was quirky: some were spot-on, and practical. For example: The number one need is approval, and the number one fear is rejection. Ain’t that the truth? The need for approval is a basic human desire, and it drives many of our choices and communications whether we consciously recognize it or not.
It all goes back to famed psychologist Abraham Maslow’s “hierarchy of needs,” which start at basic physiological needs (food, sleep, shelter, etc.) and move all the way up to self-actualization and transcendence. The importance of each tier, and therefore its priority, varies from person to person. One person may value feeling needed over feeling confident; another person may believe that ranking high on the good-looks scale outweighs being the smartest one in the room.
The overall message is this: To become the best versions of ourselves – self-actualization – we must first meet our other human needs, which include belonging and self-esteem.
This all comes into play when I’m helping to prepare a witness for testimony (depo or trial). There is a unique dynamic present when an attorney prepares a witness for testimony: the disparity of power and the witness’s need for approval. We’ve all seen it before, but make no mistake – it’s not just a witness need; it’s a human need, and according to Maslow, it’s a pretty basic one.
While the psychological facets of the attorney/witness dynamic are complex, the relationship is deeply affected by the witness’s need for approval, fear of rejection, and general feelings of confidence. And all of this is further complicated by one critical component: trust.
Trust is a core element of any good relationship, and when it is absent, lacking or misplaced it creates friction within the very dynamic that is supposed to foster a sense of safety. One might assume that a witness will inherently trust the attorney representing (or presenting) him, and will readily accept – and put into action – whatever the attorney imparts. However, I have found this to be far from true.
Think about the last time you were preparing a witness for deposition or trial testimony:
- Did the witness feel the need to tell all?
- Did the witness over-equivocate?
- Did the witness struggle with sticking to personal knowledge?
- Did the witness fill in the blanks with guesses, or, worse, inaccuracies?
- Did the witness seem like a control freak?
If you experienced any of these situations, your witness was trying to meet his needs. But in doing so, he created trust issues. Most likely, your trust in his ability to perform took a nose-dive, and it probably resulted in more “don’t-do-this” and “don’t-do-that” moments, which, again, fed into the witness’s insecurities, doubts, and trust in you. And so on…
If you ask your witness, “Do you trust me?” most will give you a head-nod and an obligatory “Of course I do!” It’s the socially acceptable answer, and saying “no” is just too darned risky (for all but the most confident humans). Intellectually, your witness may very well trust you; You are smart, you know the facts, you are a good litigator. But emotionally? He’s not there quite yet.
It’s frustrating for many of my clients to realize that a key witness wrestles with insecurity and trust issues. It’s nothing personal. More often than not, it stems from the witness’s unfamiliarity with the litigation process and the way the game works. But the emotional needs must be met before the witness can effectively handle the cognitive challenges that lie ahead.
I’ve found the following strategies to be helpful in building trust in the attorney/witness relationship. And there’s a gigantic bonus: by establishing a greater sense of trust, you inadvertently meet some of those pesky needs related to acceptance and confidence:
- Lead Gently. As lead counsel, you have been litigating for a long time, and you know the nuances of the legal process. You are intimately aware of the facts of your case, and you have worked with hundreds (if not thousands) of witnesses over the years. It’s. What. You. Do. The witness is obviously very important, but ultimately, it is your job to steer the ship. Be the leader within the relationship dynamic, but do so with kindness and kid gloves. If you come out swinging like a dictator rather than a teacher or coach, you’re making your job 10x harder than it needs to be.
- Define the Roles. By comparing the testimony process to a football team (or your sport of choice), you assume the role of head coach. The witness is one of many teammates, and each member of the team has a specialized role and adds a unique value to the team. A coach would never ask an equipment manager to hit the field and be a running back; nor would a coach ask his quarterback to play kicker. Similarly, each witness has a special role in the trial story. Most witnesses believe the whole case rests on their shoulders. Does it? Maybe, but the witness sure as heck doesn’t need to hear that. Talk about an anxiety-inducing confidence-buster! Assuage witness fears by defining the roles, and assuring him that he is not the one-and-only storyteller. You will create the plays and provide the tools, but it’s ultimately the witness’s responsibility to stick to his role.
- Remove Goals of Perfection. As the coach, you know every witness’s unique strengths, weaknesses and how to build a team that works. But you also know that mistakes happen, and that despite the best laid plans, things are never perfect. Your witness needs to hear (and believe) that perfection is impossible. We’re human, and every human is fallible. Does this mean the witness (or you, for that matter) can be sloppy or “phone it in” with regards to preparation? Absolutely not. But when a witness hears he will still be accepted, valued, and trusted even if things go a little off-track, you’re establishing trust, and meeting those hierarchical needs.
Will these strategies turn your witness into an amazing storyteller? No. Being a good communicator is a whole ‘nother can of worms and requires a ton of skills (that, yes, can be taught to even the worst witness).
But, if your witness recognizes – emotionally and intellectually – that you have his back, you’ve won half the battle.
CourtroomLogic offers a full array of witness preparation services, including DepoPrep, which prepares a witness for the uniquely anxiety-inducing experience of being deposed, and TrialPrep, which helps ensure that your witness delivers a compelling courtroom performance. If you need help preparing a witness – or have any other litigation strategy need – contact us at email@example.com.