By Dr. Ken Broda-Bahm:
The witness sits in the box. As counsel continues to fashion a question, what is running through that witness’s mind? “Where is the attorney going with this? I still haven’t had a chance yet to talk about all of the things I did well. Has juror four fallen asleep? And what was it I was supposed to do with my hands? Okay, so here is what I think I’m going to say when she finally stops her question…” As the question ends, the witness begins to answer, but the answer isn’t quite responsive, and the response isn’t quite strategic. The reason for that has to do with one of the greatest difficulties in this complicated situation of witness testimony: distraction.
From the hundreds of channels on your television to the hundreds of messages in your inbox, from the overloaded executive to the texting driver next to you in traffic, we live in a distraction-prone world. And the many of us who surf these waters by multitasking tend to believe we’re pretty good at it. We are, we think, able to keep all of our irons in the fire while effectively switching our focus from one task to another. The problem according to the research though, is that we aren’t very good at it. Even when we think our minds are smoothly doing several things at once, the performance of even very experienced multitaskers is diminished by changes in focus and interruptions. Of course, the perils of multitasking apply to all aspects of a trial lawyer’s job, but in this post I want to take a look at the research and what it has to say to the witness.
Can You Really Multitask?
We know that our attention is finite and our focus can become strained when we’re overloaded. But surely those of us used to multitasking on a daily basis have adapted to it, right? The doctor who commonly walks down a hall while listening to a colleague, making notes in a chart, and thinking about her next patient may not truly believe that, while on the stand, she ought to think and do just one thing at a time. As an expert multitasker, she may feel she has it handled, or she may simply have trouble getting out of that mode.
While we might think that experienced multitaskers are better at it than the rest of us, the research says otherwise and suggests they’re actually worse. As Katja Keuchenius writes in a recent United Academics article, “American scientists found people that multitask a lot are often sensation-seekers that find different tasks at once more stimulating and less boring than staying focused on just one thing. This actually makes them bad at multitasking; they are not able to block out distractions.” The evidence for this comes from a recent University of Utah study (Sanbonmatsu et al., 2013) in which students were asked about their perceived multitasking skills (it turns out, 70 percent feel they’re above average), and then tested on their actual skills at it. The result: Multitasking behavior is negatively correlated with multitasking skill.
More worrisome for litigators is the finding that multitasking is also associated with impulsivity (never a good trait on the witness stand). People who multitask do so, according to this research, because they are less able to focus on one thing at a time. That tendency makes them frequent, experienced, and confident multitaskers, while also making them ineffective multitaskers.
How Do Witnesses Risk Derailing the Train of Thought?
One problem with a distracted witness is that it creates a continual condition of “brain interrupted” similar to the scenario of the habitual and ineffective multitasker. A New York Times piece ran earlier this month reported on research showing that interruptions reduce the amount of brain power we are able to devote to any task, or in more blunt terms, “make us dumber.” Asking Carnegie Mello professor Alessandro Acquisti to look into this problem, the article includes its own study in which 136 experimental subjects were placed in one of three conditions. One group simply read a short passage and answered some questions about it. Both the second and third groups were taught to expect interruptions by receiving text messages at two points during the task. Then in a second phase, the second group was interrupted again while the third group was on simply alert for possible interruptions that never came. The results, the New York Times reports, “were truly dismal” and reduced the performance of both the truly interrupted group, as well as the group that was simply distracted by the possibility of an interruption during that later phase. “The distraction of an interruption, combined with the brain drain of preparing for that interruption,” the researcher reported, “made our test takers 20 percent dumber.”
No one wants a witness, fact or expert, who is 20 percent dumber. And I believe that the key to having a witness who is able to focus effectively on the stand or in the deposition, is to start reinforcing those focus habits during the witness preparation meetings.
A Few Best Practices for Witness Preparation
Attorneys may not appreciate that for the witness, just the act of talking or thinking about the upcoming testimony can be exhausting, intimidating, and distracting. And unfortunately, there are some ways an unfocused or hard-charging attorney can magnify those feelings rather than diminish them. Here is my list of best practices for producing a witness that leaves the preparation session with more focus and fewer distractions than they had when they came in.
1. Divide the Preparation Into Phases. It is difficult to switch back and forth between talking about the issues, the testimonial process, the do’s and don’ts, and the key messages the witness should remember. It can also be distracting to be moving in and out of practice mode to the point that the witness wonders, “Are we just talking about the answers, or am I supposed to be giving them as I plan to during testimony? To head off that confusion, expressly divide the meeting into chapters: “First, we’ll resolve any outstanding legal or factual challenges, then we’ll move into direct practice, then cross-practice, and finally we’ll end with a list of things to work on for next time.”
2. Resolve the Substantive Issues First. For a key witness, to do mock testimony without having a strategic understanding of their goals in the testimony is like taking the test without having attended class or read the book; you might do okay, but probably not. Instead, it is better to first have a session where the goal isn’t practice, but is instead to get everyone on the same page regarding the facts and the most effective messages. Then, once the plan is known and relatively nailed down, it will be time to move into the practice phase to make sure that what comes across is as clear and compelling as it can be.
3. Engage in Sustained Practice with Intermittent Feedback. It is definitely possible to give too much feedback. A witness who testifies for two minutes and is then given a 30-point list of do’s and don’ts will not be focused when the practice begins again. In addition, a witness who gets feedback after every single answer is going to be distracted by the continuous thought of, “I wonder what my attorney will say about this.” Instead of jumping in to correct everything you see when you see it, let the witness have the experience of sustained testimony. Start with 15 minutes or so without interruption, and then build up from there. When you hear something you need to talk about, write it down instead of blurting it out. When testifying, the witness should focus only on testimony. And when receiving feedback, they should focus only on the feedback. It is the constant back and forth that puts the witness on a multitasking and distracted course.
In closing, I can’t escape the irony that I’ve written this post in bits, pieces, fits and starts over the past few days while traveling for a witness preparation, conducting a focus group, writing up recommendations for a client, running a conflicts screen, writing a proposal, and preparing for an upcoming trip overseas. This blog lives on multitasking, and it is unrealistic for most of us to say that we could ever eliminate that need to do several things at once. But even if we can’t get rid of multitasking in our personal and professional lives, we can try as much as possible to keep it out of court, off the witness stand, out of the deposition, and…wait, I just got an email.
Other Posts on Witness Preparation:
Sanbonmatsu DM, Strayer DL, Medeiros-Ward N, & Watson JM (2013). Who multi-tasks and why? Multi-tasking ability, perceived multi-tasking ability, impulsivity, and sensation seeking. PloS one, 8 (1) PMID: 23372720
Image Credit: Underminingme, Flickr Creative Commons