Witness Preparation Tip: When Is It Appropriate For A Witness To Show Anger?

LWORLD

Many years ago, I was working on witness preparation with a corporate HR Director who was being deposed. It was quickly apparent from the moment that he walked in the room that he was not happy to be there. During his own mock direct examination, when the questions were clearly “friendly fire” from his own attorney, he was angry and aggressive. He was so mad that he was getting out of his seat and pointing at his own attorney with his finger when answering simple questions. What was worse, he was getting progressively more emotional and belligerent as the questioning continued. And we hadn’t even gotten to mock cross examination yet! It was clear we needed to take a break and pull him aside for a heart-to-heart discussion. In his current emotional state, he was the antithesis of an HR Director, and his display of anger was inadvertently reinforcing the plaintiff’s claims that the company did not care about his complaints of racial discrimination. An additional complication was that the HR Director thought his strong, angry reaction was helping his employer’s case.

While extreme, this witness’ reaction to testifying is not unusual. It is no secret that no one looks forward to being deposed. Testifying, either in court or for a deposition, is an inherently stressful prospect for most people. Anticipating being cross-examined by opposing counsel with personal questions or questions they don’t remember the answers to, only increases their anxiety. These feelings often create an unexpected emotional reaction – most often anger – as expressed through a witness’ tone, word choices and body language.

Reacting with Anger Rarely Helps Credibility

It is understandable for witnesses to be emotional about the experience of testifying, but our research over the past 20 years has shown us that reacting with anger rarely benefits the person testifying, or the case itself. We have heard jurors frequently say that “the truth is the truth,” and when a witness is angry when testifying, jurors do not understand why this reaction is necessary if one is telling the truth. Unfortunately, the ways anger generally manifests itself during a witness’ testimony (e.g., facial tics, crossing arms, sarcasm, loud voice, etc.) are also the very same behaviors that jurors commonly perceive as “defensive,” “evasive,” and/or coming from someone who “has something to hide.” Therefore, when a witness is expressing anger, many jurors interpret the behavior as indicative of dishonesty.

The Exception to the Rule

Now, there is one main exception when showing anger while testifying may be appropriate. If the opposing attorney calls a witness’ integrity into question, jurors expect the witness to “buck up” and push back to defend his or her honor and integrity. But it needs to be a short-lived reaction that does not carry through the rest of the testimony or the positive benefit of the original reaction will lose its effectiveness with jurors.

Identify the Source of the Anger

Learning the source of a witness’ anger or emotion is the start to improving the witness’ testimony in order to enhance that person’s credibility with the jurors. This often entails discovering what specifically is driving the emotional reaction. In the previous example of the HR Director, our discussion with him about the source of his inappropriate reactions resulted in a cathartic moment for him: he admitted that he believed the whole lawsuit was “his fault” because he didn’t “paper” his file correctly. He was also extremely upset because he felt the plaintiff was a “charlatan” who was “gaming” the system and he wanted the jury to know that. Unfortunately, the intensity with which he was communicating the latter message was hurting his credibility as an HR Director, and was ultimately working against him and against his employer’s case. Once he expressed these sentiments, we worked to alleviate his concerns without diminishing their validity. We also needed to educate him that, while his feelings about the plaintiff were valid, his anger at communicating those feelings was actually undermining his own credibility.

It took more work, but eventually he was able to control his anger and focus on his themes and testimony, rather than allow his own insecurities and beliefs about the case to distract him. As a result, he testified as an HR Director who was able to let go of his anger. At the end of the trial, we learned during post-trial exit interviews that the trial jurors found him to be a strong, credible, fair and persuasive witness – the quintessential HR Director.

Conclusion

Anger is a common emotion, especially for individuals involved in a lawsuit against their will. Learning how to identify, control and, most critically, focus witnesses’ anger will serve them well as they help the trial team in its ongoing battle for credibility.

 

MJP

By: Merrie Jo Pitera, Ph.D. – CEO

 

 

 

 

 

 

This article won the LitigationWorld Pick of the Week award. The editors of LitigationWorld, a free weekly email newsletter for litigators and others who work in litigation, give this award to one article every week that they feel is a must-read for this audience.


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