Testifying is stressful, regardless of topic. But when it’s about something personal, the witness requires even more intensive coaching to stay composed.
Nothing says Happy New Year like a “Bull” episode with a predictably ridiculous happy ending. This week’s episode, “Look Back in Anger,” involves a civil trial alleging sexual abuse of a minor during camp for at-risk boys. The challenge, however, is the abuse occurred about 25 years ago. Even though New York temporarily lifted the statute of limitations for childhood sexual abuse for one year, suing over abuse from a quarter century ago is challenging, at best.
The plaintiff, Stephen Raposa, had originally hired Bull’s team to sue on behalf of his younger brother, Ryan, who claimed he had been molested at 13 by the camp’s founder, a wealthy businessman named Peter Maybrook. Ryan’s life had since been plagued with drugs, alcohol, theft and, generally, failing to cope in the adult world. One afternoon, Stephen finds Ryan bleeding out in his bathtub: He OD’d and slit his wrists to make sure the deed was done.
The team informs Stephen that despite New York’s new laws, he cannot sue on behalf of his deceased brother. Moments later, Stephen tearfully admits that he too was molested at the camp by Maybrook, and a claim is born.
The episode, as usual, confuses civil procedure with criminal procedure, and most of the time ignores procedure altogether. Apparently in the world of “Bull,” this thing called “discovery” does not exist, which makes for interesting television, but laughable moments. Instead of writing about the litany of far-fetched procedural snafus, I want to focus on a subtle, but critically important, interaction between Bull and his client.
After deciding to take on the case, Bull met with Stephen privately to talk through the details of what happened. (Note: Typically, this sort of meeting would occur before deciding to file a lawsuit, but again, procedural muckety-muck.)
Stephen has not told his story of childhood molestation to anyone before and he is clearly uncomfortable. Bull’s advice to him was spot-on:
[Your discomfort is] completely understandable, but you’ll have to tell the story in front of a jury, and the best way to prepare for that is here.
Seldom do I wholeheartedly agree with Bull’s musings or tactics, but I can get on board with this one. Witness preparation is one of the most important, but often ignored, elements of trial prep. The law and the facts are the foundation of any successful case, but since human beings are the ones carrying the water for those facts, the people who tell your story must be ready to do so in a concise and compelling way. Unfortunately, the trial (and deposition) setting is so anxiety-producing that I’ve seen even the most composed professionals turn into sweating stammerers who would confess to the Lindbergh kidnapping just to get out of the hot seat.
Witness prep both helps them hone their message and also find ways to manage their (perfectly natural) anxiety. Here’s a rundown of my most crucial witness prep tips:
Acknowledge the Witness’ Discomfort
Whether your witness admits to it or not, he or she is feeling stress and anxiety about the prospect of testifying. And if your witness is testifying about personal issues, as opposed to accounting numbers or business policy, it’s even more difficult. This is especially true with victims in criminal matters; in family law cases, where dirty laundry and mudslinging accusations are almost a given; and in wrongful death or personal injury cases where a witness is testifying about a heart-wrenching loss, be it life or limb.
Empathize with your witness and acknowledge what they’re feeling. Let your witness feel all the feels; it’s OK. It’s not your job to make the feelings go away altogether. Instead, provide feedback that acknowledges what the witness is feeling and offer some support. Lawyering also involves a bit of shrinking (as does jury consulting).
The feelings that emerge when a witness recalls his story should never be overlooked, and I’m here to say, they often are. So, props to Bull for at least acknowledging the witness’ discomfort.
Practice Telling the Story
I’ve worked with witnesses who simply could not share their story without bursting into tears, expressing inappropriate anger or shutting down completely. And I am a friendly face and advocate. Can you imagine how these witnesses would fare in a deposition or on the stand without having told their story multiple times?
The more often a witness talks through her story, the more comfortable she’ll become with telling it. I’m not promising that your witness will turn into a rock star, but with preparation, she will certainly testify more effectively than they would otherwise. And know this: Telling the story does not always involve a formal mock question-and-answer session. Sometimes, you just need to have a casual conversation with your witness and allow her to process the experience, tap into the memory bank and figure out what her story actually is.
Use repetition to your advantage during the prep sessions. The story does not need to be perfect. It does not need to be trial-ready right out of the gate. It just needs to be accurate. Over time, the act of repetition teaches your witness that she can, in fact, tell her story. And tell it well.
Do Not Cram
The opportunities to talk through the story should occur long before the scheduled deposition or actual trial testimony. Do not, I repeat, do not, cram the night before. And do not wait until the witness bombs in a deposition to refine the message.
Ask any of my clients what I nag them about, and they’ll tell you this: Preparing your witness for testimony begins during discovery. It’s an ongoing process, not an eight-hour marathon meeting.
Break your prep sessions into multiple, shorter sessions. Yes, it’s a beatdown scheduling-wise, but it’s actually a win-win. The witness is provided more opportunities to tell her story and you are provided with multiple chances to identify inconsistencies, areas that require some information-gathering, and determining potential strengths and weaknesses from a fact standpoint.
Back to Bull
And now I realize I haven’t told you what happened in “Bull.” The quick version is this: Despite skepticism about Stephen Raposa’s claim that he too was abused by Maybrook (especially after the defense proves that Maybrook was out of the country during the critical date in Stephen’s testimony), Bull and team miraculously find photographic evidence of Maybrook’s affinity for young boys, resulting in a $35 million verdict against him.
The civil trial gave rise to criminal charges that most likely will put Maybrook in prison for a very, very long time.
OK, so I said it was a “happy” ending, and there isn’t such a thing when dealing with matters of sexual abuse. But, at the very least, there was a measure of justice for Raposa, which is something.
Photo: Michael Weatherly as Dr. Jason Bull and Aaron Dean Eisenberg as Stephen Raposa in “Bull” season 4 episode 11: “Look Back in Anger.” Photo: CBS Broadcasting Inc.