April 29, 2013

Witnesses, Don’t Get Too Comfortable

By Dr. Ken Broda-Bahm:

Hammock[1]Think about stage fright. Now, multiply it by two, or perhaps ten in some cases. Being in the witness chair in trial compounds what we traditionally think of as speech apprehension, because it adds not only greater degrees of formality, but also the knowledge that there is someone on the other side who is being paid quite well in order to pick us apart. For a party in the case, an expert witness, or any witness, the advice to “just be calm” doesn’t often help. Testimony, whether in trial or deposition, is inherently a high stress event and the advice to get comfortable and relax may not be just unrealistic, but counterproductive as well. 

According to some new research (Jamieson, Nock & Mendes, 2013), the answer may lie in embracing the stress. Instead of chasing the elusive goal of comfort in the witness chair, it is better, according to these researchers, to acknowledge the inherent stress of being a witness and work to reframe the fact of the heightened physiological state, sometimes called the “fight or flight response,” as something more positive. Speakers who did this in contexts where they knew they would be challenged performed much better, even as all physical signs of stress remained constant. This post takes a look at the study and draws out a few suggestions for parties, experts and all witnesses to focus on performance instead of comfort.

The Research: It’s All in the Frame

The physical signs of stress — tremors, perspiration, heart rate — are fairly constant and occur both in those who believe they’re handling stress well and those who are convinced they’re falling apart. The difference is a cognitive one: how we label those signs. Think of two children waiting in line for the roller coaster: both are breathing faster, both appear antsy, and if you drew blood you would find that both are carrying more oxygen and more white cells in their blood. These are all the classic symptoms of stress, telling you the body is prepared for battle, for escape or for injury. But now imagine that the two children have very different attitudes about the roller coaster: One is a terrified first-time rider only reluctantly in line and the other loves roller coasters more than anything he can imagine. The first child will define those symptoms as “fear,” while the second one labels them “excitement.” Same symptoms, different labels, and radically different mindsets as a result.

This is essentially what researchers from University of Rochester, Harvard and U.C. San Francisco replicated and published in the current issue of Clinical Psychological Science (Jamieson, Nock & Mendes, 2013). Using 69 adults, half of which suffered from the highest levels of stage fright where it rises to something called “Social Anxiety Disorder,” the researchers asked these participants to give a five-minute talk about their strengths and weaknesses with only three minutes to prepare. Assigning the participants to one of two groups, they presented the first group with information about the advantages of the body’s stress response including the summaries of three psychological studies showing the performance benefits of stress. The participants in the first group were then encouraged to “reinterpret your bodily signals during the upcoming public speaking task as beneficial.” Those assigned to the second group received no information about reframing stress.

And the speech itself was no picnic. As participants presented, there were two judges who were coached to purposefully provide negative nonverbal feedback during the presentation. Researchers found that when participants received no stress preparation they experienced a threat response. Those who were asked to reframe and focus on the benefits of stress, on the other hand, did much better, reporting that they had more resources to cope with the task and performing more effectively according to the judges. “The problem is that we think all stress is bad,” lead author Jeremy Jamieson points out in a Eurekalert on the study, “But those feelings just mean that our body is preparing to address a demanding situation. The body is marshaling resources, pumping more blood to our major muscle groups and delivering more oxygen to our brains.” Debilitating stress is a factor not of the physical symptoms, but of the way we react to them. As Jamieson boils it down, “We construct our own emotions.”

All Witnesses: Reframe from “Anxiety” to “Energy” 

For any witness preparation in which the witness is reporting higher levels of stress, and potentially for all witness preparations, it will help to do essentially what the study authors did with group one. Tell them to expect stress but to also understand that there are benefits to being pumped, alert, and awake during testimony. Essentially, it just means that they are ready for battle with the other side. Now, that doesn’t mean that we want a sweaty hyperventilating mess in the witness box. The witness still needs to be focused and clear. But many witnesses find that they’re actually more able to do that if they set aside the elusive goal of “comfort” and, instead, accept the fact that their body is going to be in a bit of an overdrive situation while they’re on the stand.

Experts: Replace “Comfort” with “Commitment”

Over the weekend I presented at SEAK‘s National Expert Witness Conference in Chicago and the speaker following me, James Mizgala of Sidley Austin, made an excellent point. When strategizing the scope of their opinions with counsel, experts are often asked, “Are you comfortable with that?” As Mr. Mizgala stressed, “You need to set a higher standard than ‘comfort.'” An expert witness who is merely ‘comfortable,’ but not filled with conviction on a particular aspect of their testimony, will not be credible and may not survive cross-examination on that point. So beyond the simple avoidance of speech anxiety that the study focuses on, there is also the common need to avoid getting too comfortable with an attorney’s leadership and avoid the ‘hired gun’ anxiety that occurs when the words and the positions are not quite your own. Even when an answer isn’t what the attorney would want you to conclude or say in an ideal world, an opinion to which an expert can be committed will always fare better in trial.

Party Witnesses: Let a Little Anger In

The events leading to trial can produce a lot of anger, and as I’ve written before, you don’t want to risk breaking the identification that jurors have with the witness by giving full rein to an angry, emotional, or adversarial response. But that doesn’t mean that the witness needs to appear cool or disinterested either. When a party has either been wronged or has been wrongly accused, it is only natural for a little anger to attach to that condition and jurors won’t be shocked to see it as long as three conditions are met. One, the anger should be directed at the circumstances and not the personalities, the process, or the jury. Two, the anger should be measured and rational so jurors appreciate it as well. And three, the witness must remain in control and focused on helping jurors understand what they need to understand. In that context, the physical symptoms of stress that accompany the testimony can be appropriately reframed as something else like righteous indignation, as long as it isn’t too righteous or too indignant.

Ultimately, witness testimony is not a case where “All the witness has to fear is fear itself.” Witnesses should fear communicating disrespect or a lack of control, but also need to fear being blasé, inattentive or disconnected. Stress can be a friend if you’re able to see it as your body’s way of keeping you engaged and ready for battle.


Other Posts on Witness Preparation: 


Jamieson, J. P., Nock, M. K., & Mendes, W. B. (2013). Changing the Conceptualization of Stress in Social Anxiety Disorder Affective and Physiological Consequences. Clinical Psychological Science.

Image Credit: 123rf.com, used under license (edited by Jason Bullinger, Persuasion Strategies)


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