By Dr. Ken Broda-Bahm:
When I taught public speaking I’d ask students to picture an experiment. A group of people are being tested on their ability to shoot basketball freethrows, and they’re divided into subgroups (evenly matched on ability) and each subgroup prepares for the test differently. One group prepares by actually practicing with a basketball on the court. A second group is asked to prepare by visualizing the shot: They picture the ball arcing through the air and going through the basket, nothing but net. A third group does nothing before the test. So which group would you expect to do best on the test? The group that practiced with the ball seems like the best bet. But the intriguing possibility is that the group just visualizing would come in a very close second. Some say that this study has actually been done with exactly that result, but the better information seems to be that this study on visualization is just that, a visualization – an academic myth about a study that never actually occurred. But the illustration is still useful and there is no shortage of current research on the benefits of mental preparation.
That research is frequently cited by those who practice and promote the idea of visualization and mental practice. That was an important point for my public speaking students to get: Practice and visualize your speech. And it is an important point for litigators and witnesses to understand as well. Voir dire, openings, closings, and witness examination and testimony: These are all high stakes communications situations that can be executed well or poorly. So how do you prepare? Of course the substantive preparation is to know the facts and the law, the arguments and the evidence, the goals and the structure. But there is also the practical preparation of walking through it mentally and getting up and doing it. Drawing from a recent Psyblog post on the demonstrated benefits of mental practice, this post focuses on what attorneys and witnesses should be doing and avoiding when it comes to getting their heads in the game.
Pulling together a number of recent research findings on the subject, the reliably useful Psyblog points to a few fascinating qualities of mental practice:
- Medical students do significantly better when trained in mental imagery techniques (Sanders et al. 2008).
- Novice surgeons do better when they engage in mental practice (Arora et al., 2011).
- Individuals are even able to improve the muscle strength in their pinkies through mental practice alone (Ranganathan et al., 2004).
Attorneys Should Practice and Visualize
In my experience, there are some differences in how attorneys prepare for something like an opening statement. Some attorneys will prepare as well as an actor, and will habitually stand up to deliver their opening to a handful of people in the office or to an empty room. These attorneys are typically very good. Other attorneys will prepare well at their desk, but only rarely on their feet, most often presenting their opening for the first time while in court. Those attorneys are usually not as good. Being ready on the substance is one thing, and being ready to execute it well is another thing. The busy litigator will often feel “It would be great to practice, but who has time?” Well here’s a tip that I’ve shared with a number of the attorneys I’ve worked with. Get ahold of a good digital recorder – these days, there is probably one on your phone. Record yourself as you deliver the opening. Then listen to yourself as many times as you can. It is a passive form of practice that you can engage in as you’re doing other things: while you’re eating, just before you go to sleep, or while you’re driving to court. While you listen, visualize yourself up on your feet presenting. I give a lot of presentations frequently using this method and it works.
Witnesses Should Practice and Visualize
Witnesses are generally more nervous than experienced attorneys, and that makes the practice phase all the more important. When an attorney says they’ve prepared a witness, or when a witness tells me they’ve been prepared, I’ll always ask what that means. It all too frequently means that the lawyer and the witness have sat down at the same table and talked about the case. That kind of meeting is critical, but it isn’t practice. Particularly for a witness who’s never testified before, they need that picture in their heads and they need that experience. Once the substantive portion of preparation is mostly done, we encourage the witness and attorney to walk through the mock testimony or the mock deposition. Then, a final assignment at the end of the session is for the witness to keep a few things in mind and often that means visualizing themselves answering calmly, credibly, and nondefensively.
Both Should Avoid Negative Visualization
There is another word for “negative visualization:” worry. Witnesses worry, attorneys worry, and worry means thinking about and picturing what could go wrong. To understand why that doesn’t help, let’s go back to the idea for the basketball study and think about what would’ve happened if there was a fourth group asked to prepare for the freethrow test by imagining a series of bricks and missed shots like our President experienced recently on the court: The ball arcs high and over the backboard, bounces off the rim, or falls several yards short of the hoop. There is no question in my mind that this group of negative thinkers will do not just worse, but far worse when it comes time to actually shoot the ball. The same applies to practice for attorneys and witnesses: When you practice, make it positive practice, and when you visualize, make it a positive picture. That doesn’t mean blinding yourself to the negatives in either your case or the situation. Instead, it means picturing and practicing your best self and your best responses.
There is a wonderful moment in the final Harry Potter installment where, as part of a kind of dream sequence, the young wizard asks his mentor, “Is this real or is it all in my head?” Dumbledore replies, “Of course it’s all in your head, but that doesn’t make it any less real.” In the science and art of how we understand ourselves and influence others, the pictures and the practice that takes place in your head is all the more real.
Other Posts on Preparation:
- Practice the “Three P’s” of Oral Argument: The Example of Paul Clement
- Create the Conditions for a Creative Trial Strategy
- Mix Creativity With Dogged Persistence When Preparing for Trial: A Lesson from the ABA Journal’s Blawg 100
Image Credit: Used under license, www.123rf.com