Preparing the Witness: Sometimes it’s easy (sometimes it’s not)
Two new research studies highlight the potential complexity and also the simplicity of the witness preparation process. What is fascinating about these studies is that they approach the same problem from such different different perspectives. The challenge is in knowing when you may need to use which perspective.
Let’s say your witness is not confident and you need him or her to project an aura of confidence to enhance credibility, likability, and believability. The witness may seem nervous, fearful, or even guilty. What you do depends on your assessment of what results in your witness’ lack of confidence.
Intervention 1: You assess that your witness needs to “feel” or “see themselves” as more powerful. The first new study would say you can help your witness project more confidence by simply having them sit up straight. That’s simple, isn’t it? It can’t be right—it’s too simple, virtually dumb. But the power isn’t merely appearance—confident posture can trick our brain into thinking we are more confident and thus have impact on how we present ourselves. This approach assumes the problem is a simple matter of slightly modifying self-presentation.
Intervention 2: You assess that the witness is deeply shamed about their role in the case, the decisions they made, or how they behaved. Their reaction may be to respond to examination with anger, obfuscation, or guilty ‘deer-in-the-headlights’ paralysis. The second study shows how people who are paralyzed by shame tend to internalize and over-personalize the situation. This is a much more complex issue, but assist the witness to identify external factors that contributed to their decision. This tactic can help the witness shift their perspective from being a “bad person” to being someone who has perhaps done something bad or wrong due to external influences. They can’t run away from their conduct, but they also need to gain some perspective on their role.
We see shame-based responses in witnesses with no reason to be ashamed—from medical malpractice to commercial cases. It’s not the type of case that matters. It’s the type of personal reaction your witness has to a complex combination of case facts and personal idiosyncrasies. The best possible approach may be a combination of the two interventions: address the shame and inoculate the witness against the shame. Then tell them to sit up straight!