What Should I Do When My Witness Wants to Outsmart Opposing Counsel?

In my career, I have never seen jurors give a witness in a mock trial as low an evaluation score (1.3 out of 7) as one witness we encountered named Tim.  In fact, one of my fellow consultants on the project confessed, “I once worked on a case that involved [an accused] child molester.  The ratings [Tim] got were worse than the ratings for the [accused] child molester.”

Tim was an arrogant person, and jurors recognized that.  But arrogance alone doesn’t automatically garner juror contempt – at least not the level of contempt directed at Tim.  So, what happened?  Why did jurors have such an adverse reaction to Tim?

Jurors rated Tim so poorly because he was trying to outsmart opposing counsel.  When opposing counsel would ask Tim a question, he would answer in a pompous, sarcastic manner, with a biting, “I-am-smarter-than-you” tone.  For example, at issue in this litigation was a software product – a product Tim helped develop – named “Salmon.”  Opposing counsel asked Tim if he had heard of “Salmon,” to which Tim responded with a terse “Yes.”  When opposing counsel asked, “What is Salmon?” Tim replied, “A kind of fish.”

low-witness-rating-witness-preparation

Why Do Witnesses Try to Outsmart Opposing Counsel?

First, let’s focus on Tim.  Why did he choose to do this?  Wouldn’t it have been simpler to answer questions directly, and without obvious contempt for opposing counsel?  No, not for Tim; he was so offended the litigation was happening in the first place that his indignation overcame his good judgement, and he lashed out at opposing counsel.  He was unable to manage his underlying feelings and bring himself to answer professionally.  We call this a “poker tell.”

Witnesses are often offended at being put in the position of defending their actions or the actions of their employers at trial.  They can feel like the weight of the lawsuit rests on their shoulders.  When this happens, they may feel the urge to use their deposition as a means to “defeat” opposing counsel and win the case before it ever goes to trial.  In order to do this, a witness will tend to answer questions in a way that he or she hopes will make opposing counsel look bad.

Unfortunately, such witnesses don’t realize how off-putting this behavior is to jurors.  Our CEO tells a story about an expert witness she was called in to help prep for trial after a disastrous deposition.  The witness, of course, was very proud of his deposition testimony, and, as he described, the way he was “spitting blood at the plaintiff attorney.”  But while he was self-impressed, jurors found him to be an arrogant jerk who completely lacked credibility.

Another reason a witness can act this way centers around a game strategy mindset.  These witnesses believe they are subject-matter experts and know more about the subject than the other side.  They’re convinced they can “win” the case by being smarter, and this mindset tends to manifest itself as a sparring match.  Ultimately, they forget that the jurors are the true audience and the true judges of the evidence – and jurors don’t see it as sparring.  Instead, as jurors have told us in our mock trials and post-trial interviews, this behavior appears evasive and disrespectful, and suggests the witness has something to hide since he or she won’t just answer the question.

How Can This Behavior Be Fixed?

If you’ve got a witness who might want to outsmart opposing counsel, the most important task will be to uncover the motivation behind his or her testimony.  Spend time with your witness, asking key questions such as, “What do you hope to communicate to opposing counsel with your testimony?  And to the jury?” and “Help me understand how you feel about this case.”  If you sense a tone of sarcasm in your prep session, don’t ignore it; it may be a red flag that needs to be addressed.  Offer witnesses a catharsis moment – almost like a counseling session – to help break down lingering anger, bitterness, or fear, and encourage strong, professional testimony.

Furthermore, witnesses generally don’t want jurors to view them as jerks.  So, another strategy we use is to show our witnesses video of other, previously problematic witnesses, or of their own mock Q&A sessions.  By gaining a third-person perspective, they tend to see how such behaviors actually undermine their credibility and their case.

Conclusion

While there are no silver bullets for preparing challenging witnesses, understanding the goals and fears that lead to these behaviors is the first step to correcting the problem.  Listen to your witnesses for possible red flags and try to address their concerns.  If you find yourself in a tough spot, we develop strategies tailored to each witness’ specific needs and would be happy to help you get the best testimony out of your witness.

 

John-WilinskiBy: John Wilinski, M.A. – Consultant