Tag Archives: witness preparation

September 1, 2014

Consider Confidence

By Dr. Ken Broda-Bahm: 

In foreign policy, the projection of certainty and confidence can be as important as the strategy. On that score, it hasn’t been an easy few weeks for the Obama administration. While some find it refreshing for leaders to avoid quick bravado in response to complex world events, others have attacked everything from the President’s choice in suit color (“The Audacity of Taupe”) to the admission of a lack of strategy in response to events in Iraq and Syria. Critics argue that this lack of confidence projects uncertainty which weakens our position and emboldens our enemies. And there is another area where a lack of confidence can do the same: trials. When an attorney or witness conveys discomfort, uncertainty, or a lack of confident composure, jurors and judges will take that as a reflection on the case. Even when we know it isn’t true, we act as though it is: Winners are confident and losers aren’t. 

The research backs that up as well. In addition to decades of studies showing that confidence is a key component of credibility, a new study (Lamba & Nityananda, 2014) shows that even false confidence can be very convincing. People who overestimate their own abilities end up being seen as more talented than others and are more likely to get positive breaks in life. And the converse goes for those who underestimate their abilities. Both uncertainty as well as the overconfidence are likely to bleed over into an audience’s analysis. For jurors or judges, that means that their own sense of how a witness is doing on the stand, for example, will be strongly influenced by the witness’s own sense. This post takes a look at the study and then, confidently, draws out a few implications for witness preparation. 

Research: Confidence Drives Credibility

It has long been noted by those studying the psychology of credibility that one of its strong components is confidence (along with competence and similarity). The reason confidence plays such an important role in our evaluations is probably because we see confidence as an outward sign of an inward certainty. And we believe, wishfully, that those who are most certain are also most likely to be right. We see this connection in a variety of settings, but in litigation particularly. Jurors are even asked as part of their instructions to look at a witness’s demeanor in evaluating the truthfulness of their testimony. 

The new study (Lamba & Nityananda, 2014) is covered in a recent Psyblog post that provides a handy overview. The authors looked at interactions in university tutorial groups. Students were graded at the end of the term, but predicted their own grades and the grades of their group-mates along the way. The result: “Overconfident individuals are overrated by observers and underconfident individuals are judged by observers to be worse than they actually are.”

Overconfidence, it turns out, is persuasive. As co-author Vivek Nityananda is quoted in Psyblog, “It can be beneficial to have others believe you are better than you are and the best way to do this is to deceive yourself — which might be what we have evolved to do.” In other words, fake it until you make it. 

Consider Confidence in Witness Preparation

Of course, no witness should ever be encouraged to “fake” anything. At the same time, because confidence is such an important factor in interpersonal evaluations, it should never be ignored in witness preparation. 

Don’t Take Confidence for Granted

Experienced attorneys, consultants, and the witnesses themselves understand that confidence is important. Still, there can be a temptation for all three groups to treat confidence as the norm, or as the natural consequence of preparation. It certainly can be, but there might also be other reasons for a lack of confidence. Testimony also carries a substantive dimension, and for many witnesses, their confidence will come down to the question, “Did I do the right thing?” It is a question that matters equally for plaintiff and defense witnesses. In addition to familiarizing and practicing, diagnose the reasons for any lack of confidence on your witness’s part.  

Don’t Use Preparation to Reduce Confidence

Lawyers tend to operate under the principle that working on something is the way to improve it. That’s often the case, but not always when it comes to the complicated and fragile phenomenon of human confidence. When working with witnesses, it is critical to avoid anything which would serve to make the witness less confident as a result. One example is what I call “prescription and proscription without practice.” In other words, many lawyers feel like a witness is “prepped” once they’ve experienced a briefing in which the lawyer has simply shared their list of “Do’s” and “Don’ts” as they apply generally and in the case. Without practice, and without the witness getting to the “Okay, I can do this” feeling, that list can simply serve to increase witness stress and reduce performance. Another tip is not to uncritically use video. I will often use it, but typically I do so when I can show the witness their own improvement. Few like to see themselves on video to begin with, and showing flaws alone just undermines confidence. 

But Don’t Promote Overconfidence

In many settings, we think that the more confidence someone has, the better. Trial testimony is probably not a setting like that: There’s no cure for over-confidence quite like cross-examination. In the study discussed above, a little self-deception turns out to be a good thing, making others more likely to think highly of you. But in trial preparation, I think the goal is realism, not self-deception. That means that for some witnesses (e.g., those who are arrogant, who have an exaggerated view of the virtues of their own position, or have blinders toward the other side), you will need to talk them off that ledge of self-delusion and back down toward realism. The trick is to do so without reducing confidence. In some cases, leaving the witness with a little delusion is better. Ultimately, the question for preparation is always, “Am I making it better?”


Other Posts on Credibility:


Lamba, S. & Nityananda, V. (2014). Self-Deceived Individuals Are Better at Deceiving Others . PLOS ONE, August 27, 2014: DOI: 10.1371/journal.pone.0104562

Image Credit: 123rf.com, used under license

August 15, 2011

Keep Your Witness Out of the Woodshed

By Dr. Ken Broda-Bahm –

The term “woodshedding” as applied to a witness has a colorful history, starting with the notoriety of a small structure just outside the colonial courthouse in White Plains, New York, where attorneys would meet with witnesses just before coming in to court.  As used today, “woodshedding” basically means telling witnesses, fact or expert, exactly what to say and exerting enough personal control over the witnesses to make sure that they say it.  It is a bad idea for several reasons ranging from ethical, to practical, to persuasive.   While most attorneys will avoid the absolute extreme of witness ventriloquism, it is best to think of a continuum with “just tell the truth,” on one end, and “repeat after me” on the other.   While members of the public, including jurors, might wish for all witnesses to be on the former end of the scale, that leaves out several important and meaningful components of testimony.  Litigators and other students of communication know that within the range of truthful testimony, there are better and worse ways to explain, more and less effective ways to give and withhold emphasis, and persuasive and unpersuasive ways to simply clothe ideas in words.  So in all of those areas, “just tell the truth,” isn’t enough help.   Continue reading

November 21, 2010

With Eggs and Arguments, Keep the Sunny Side Up, But Cook Both Sides


By: Dr. Ken Broda-Bahm


For the litigator preparing a witness or working up an opening statement, there is an important question of whether you should just make your own case, or identify and respond to the arguments likely to be offered by the other side.  For the witness, should you cover in direct what you expect will be hit on cross, or should you wait and either hope it isn’t covered, or respond to it only on re-direct?  In opening statement, are you better off devoting time to a careful construction of everything that points to a verdict in your favor, or should you, either anticipating or reacting to the other side’s opening, focus on tearing down their likely case?  Experienced litigators know, of course, that some attention needs to be given to opposing arguments, but it is often a difficult question of balance.  The fear is that in giving extensive coverage to the arguments emerging from the other table, you are appearing defensive, or giving those issues too much presumptive credibility in advance.  In argumentation and persuasion research, this issue is known as “one-sidedness” versus “two-sidedness.”  And it is a question that has been researched — a lot.  A post earlier this month in Psyblog reported on long-term research conducted by Daniel O’Keefe and others incorporating fifty years of experiments with more than twenty thousand participants.  The over-arching conclusion of that line of research suggests that attorneys, in most instances, should be a lot less skittish about devoting attention to the other side. Continue reading

March 3, 2010

Shiny Loafers or Muddy Boots? Find a Witness With Boots on the Ground

by: Dr. Kevin Boully

Boully_Kevin_88_120“I mean honestly, I think that some of the most convincing witnesses were the ones that were actually there.”
  [Male juror in his mid-20’s]


Many commercial litigators assume an upper-level manager’s ability to handle sticky questions, describe company policies and profess company values should be useful to jurors’ evaluation of the company and the behavior at issue.  Probably the most important witness, right?  I mean, these manager-types are high achievers, decisive managers, and confident communicators – a perfect fit for the role of company rep and star witness.  They’ll take the stand early on, deliver the key messages with a sparkly grin, and slam the door on your opponent’s case.  Right?  Make these assumptions at your client’s (and your own) peril.  Continue reading

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