By Dr. Ken Broda-Bahm:
Here’s a tale of two witnesses, both of which I prepared in the last couple of weeks. One was a nervous wreck, absolutely convinced that his testimony would be a complete disaster. He felt, initially at least, that he had little to no control over the situation, and seemed to believe that testimony required a specific personal skill that he simply didn’t have. The second witness was also nervous, but was thoroughly engaged. Taking notes on everything that I and her attorney said, she was committed to practice, and even a little exhausting in her continuing requests for more run-throughs: “Let’s try that again...” Both witnesses were definitely stressed, but there was an important distinction in the type of stress. A recent article in Psychology Today, by Jeffrey Davis, takes a look at this distinction. You have probably heard before about the “stress curve,” or the view that when it comes to optimum performance, too little stress is bad, too much stress is bad, and a moderate amount of stress is just right. But that approach assumes that we are just talking about one thing when we talk about stress. In contrast, Jeffrey Davis points out, “Not all stress is equal. There are dis-stressors that can paralyze your creativity at work, and there are eu-stressors that can catalyze your creativity at work.”
The distinction between creative and destructive stress comes from Richard Lazarus’s work from the 1960s. In a recent study (Ren & Zhang, 2015), two Chinese psychologists looked at data from 282 employees in a variety of industries, and found that the good stressors are positively correlated with individuals and teams at work being more creative and generating more ideas. Litigation is obviously a stressful situation. You might even say it is designed to maximize and channel stress. The attorneys, right in the middle of that battle, might sometimes fail to appreciate the amount of stress placed on co-workers, clients and witnesses. The witnesses in particular, face a challenging assignment, and whether they’re experiencing the good stress or the bad stress can make all the difference. In this post, I will look at a few of the specific situational factors applying to witnesses during the preparation stage that, according to the researchers, can make for either good eu-stress or bad dis-stress.
Cultivate the Good: Eu-Stressors
The so-called “eu-stressors” are also called “challenge stressors,” and they are factors that make a situation tough but still workable. These are the good stressors that can maximize performance.
Deadlines drive results, and knowing that there is a set amount of time can make us more efficient. That suggests that, for witnesses, a shorter focused session might be better than an open-ended marathon meeting. And during that session, it helps to encourage sustained periods of time where the witness stays in practice mode long enough to understand how slowly time will pass while they’re testifying.
Lawyers and others know that they’re happier and more productive when they have sufficient work, since passivity is stressful in its own right. A substantial but manageable workload creates the right kinds of stress for better performance. To model that workload for witnesses, it helps to provide them with “homework” following the preparation session: Review the relevant documents and any prior testimony, think about the following key questions, and be mindful of a few communication habits we have discussed.
Expectations create stress, but when the expectations are clear, the stress is productive. For witnesses, the expectations for testimony should come down to some clear and specific principles of testimony. Instead of impressing on the witness how important or how challenging the testimony will be, focus on what the witness should do: the “rules of the road” for savvy and effective communication.
Avoid the Bad: Dis-Stressors
The so-called “dis-stressors” are also called “hindrance stressors,” and they are factors that make a situation seem to be unmanageable. These are the bad stressors that can seriously harm performance.
In an employment context, an atmosphere of bickering and gossip contribute to stressful distraction. To avoid distraction for a witness, don’t bring baggage into the preparation session. Focus on all of the aspects of the case that affect this witness’s testimony, but stick to just those issues. Discussing facts and questions that don’t bear on their testimony can just add to their general feelings of fear, uncertainty, and a lack of control.
Red Tape and Logistics
Bureaucracy is another harmful stressor. For that reason, do not spend unnecessary time on the legal system’s rules and formalities. Witnesses need to understand that they’ll be taking an oath and telling the truth, but focusing on the mechanics of the law, the claims, and the myriad objections can be formalistic distractions. Instead, a witness should focus on broad goals: Bottom line, we want jurors to understand what happened from your perspective.
In a work setting, job uncertainty adds to stress, and for a witness, the question “What am I supposed to do?” is similarly stressful. Instead of just having a meeting with the witness to discuss the case issues, have a practice session where you mock the conditions of actual testimony as realistically as possible. That way, the witness’s understanding of what they are supposed to do is applied, concrete, and behavioral. After a good preparation session, the witness knows what to expect.
Of course, with all of this the preparation and the testimony will still be stressful…and it should be. But it should be the right kind of stress.
Other Posts on Witness Stress:
- Witnesses, Don’t Get Too Comfortable
- Smile (For Credibility and Affect)
- Don’t Wear Your Tension on Your Face
Ren, F. & Zhang, J. (2015). Job Stressors, Organizational Innovation Climate, and Employees’ Innovative Behavior. Creativity Research Journal. 27, 16-23
Image credit: 123rf.com, used under license