By Dr. Ken Broda-Bahm -
In the pivotal scene of “My Cousin Vinnie," a movie beloved by those who follow legal persuasion, the defense attorney, played by Joe Pesci, asks the judge permission to treat his now estranged girlfriend as a hostile witness. This is a request that the judge, with a knowing look, quickly grants. The scene provides an important reminder that even when a witness might formally be on your side, there could be one or more dynamics at work making your own witness "hostile" to your interests.
I was recently asked by a legal team faced with the task of defending the depositions of a large number of witnesses how to handle difficult witnesses who could not, or would not, answer questions with the sensitivity or strategic sense that a situation demands. Such a witness may be prone to emphasize dangerous aspects of testimony even after being clearly shown by counsel why it is dangerous. As I've written before, woodshedding the witness with strong "say this..." instructions is not the answer, for reasons both practical and ethical. Instead, the first step in preparing the marginal or reluctant witness is diagnosis: It matters why the witness is not getting the message. There are a few different possibilities:
1.) "I don’t understand the message" or "I don't understand my lawyer."
This witness just doesn't get or can't retain your advice. For some of these witnesses, we are prone to think that it can't be helped and no amount of witness preparation is going to change things. However, I've seen a number of confused witnesses get much better over time. The key is to focus on performance, not concepts and discussion. In other words, don't just meet with them and talk to them, practice with them. It is just not enough to tell a potentially confused witness what to do and why. Instead they need to practice the testimony. The key is variation and reinforcement If, maybe one time out of ten, they're able to answer the question in a way that is clear, sensitive, and strategic, then that is the version that earns all kinds of praise from you. Do that as much as time permits, and the good testimony will start seeping into their habits - not all at once, but over time.
2.) "I don't trust the message" or "I don't trust my lawyer."
To this worried witness, it seems like the lawyer is trying to push them toward an answer that doesn't feel 100 percent true. To them, putting any spin on a fact, or stating it in any way other than bluntly, just feels dishonest. They don't grasp the nuance that a different answer can still be accurate while at the same time being less helpful to opposing counsel. In addition to explaining why a different way of looking at it might be not only smart, but also more accurate, it is also helpful to vary the source of the information. That is, this kind of witness may be distrustful of lawyers in general. Having the same feedback coming from a non-attorney can reinforce its credibility and make it seem more like a consensus view, and less like an individual attorney's agenda. For example, in the preparation sessions for many trials, I've noticed how often a paralegal or assistant can be a highly trusted source of information and advice to the witness. While individuals in these roles are part of the legal establishment too, they might also seem closer to an average person than you are.
3.) "I've got a ‘better’ message" or "I think I'm smarter than my lawyer."
To this witness, the lawyer's advice is just one point of view, and it is optional. This witness will listen, but then revel in being their own boss when it comes time for testimony. There are two choices with this witness. One, you can alpha roll the witness, that is you can humble them or scare them based on the consequences of non-strategic testimony so they change their mind about who they should rely on. This approach can work, of course, but it can also backfire and give a truly narcissistic witness even more reinforcement for their own perceived superiority. Alternately, for a witness who is unlikely to lay down their arrogance, the other choice is to make the witness believe that the truly good ideas are all coming from them. How? Instead of pointing out problems, ask questions: "What do you think a skeptical juror would think of that answer?" "What would opposing counsel's next question be?" And ask as if you really don't know the answer. It takes more time, but eventually this witness may come around to fixing the problem themselves. And when they do, again, reinforcement: "That is truly a great answer! I didn't think of that! Have you ever thought about being a lawyer?" You may need to be more subtle, but you get the idea.
One very useful perspective to assess for any witness is the concept of rhetorical sensitivity (Hart, Carlson, & Eadie, 1980), which refers to a willingness and appreciation for the need to modify communication approach based on situation and audience. In other words, the witness low in rhetorical sensitivity understands only one way to say it: the truth is the truth is the truth. They're black and white thinkers. But the witness who is high in rhetorical sensitivity understands more than one way to skin the cat: An answer can be truthful and complete while still being more or less effective, more or less strategic. Rhetorical sensitivity does not entail a willingness to lie, but does see a necessity in adopting.
Thinking of that definition in the context of the people you know and work with, you might notice that some are more rhetorically sensitive, while others are less. It isn't an immutable aspect of personality, but it is a relatively durable communication habit that has been observed in a long line of studies, and the concept is worth considering when you assess your witnesses.
The key in preparing the difficult witness is this: instead of assuming that difficult witnesses are created equal, or believing in a one-size-fits-all preparation approach, you need to meet your witnesses where they are. Ask why a witness is having difficulty, and account for their communication style, especially their rhetorical sensitivity.
In "My Cousin Vinnie," the difficult witness (played hilariously by Marissa Tomei) doesn't have her "aha" moment and grasp of the big strategic picture until late in her own direct when she is on the stand, but it is still not too late to save the case. So take some inspiration from Vinnie: don't give up on your difficult witness. Instead, diagnose and adapt.
- Keep Your Witness Out of the Woodshed
- Take a Discovery Lesson From 'The Social Network'
- Offense Can Be the Best Defense: Train Your Witness to Fight Back in Cross
Hart, R., Carlson, R., & Eadie, W. (1980). Attitudes toward communication and the assessment of rhetorical sensitivity Communication Monographs, 47(1), 1-22 DOI: 10.1080/03637758009376016
Photo Credit: Psalinas, Flickr Creative Commons