Witness Prep 101

Most Common Problem of Witness Preparation

Law = logic

but

Behavior = biology

(and they don't teach you Bio in law school)

Witness nonverbal behavior carries far more weight

than the verbal testimony they give.

More than 10 times the weight!

Are you properly preparing your witnesses for that?!?

"Witness preparation is one of the most challenging tasks for an attorney. 

But effective preparation—whether for a deposition, an investigation, or a trial—

is well worth the time spent with the prospective witness."

- ABA website"

Attorneys must devote considerable time to prepare a witness for

an experience that he or she has probably never had and that most likely will cause anxiety.  Time spent wisely with a witness will help the finder of fact better understand the issues and make the best decisions in your case."  

- ABA website

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Strengthening your witnesses to testify more authentically strengthens your overall case

It is the witness’ credibility that the judge or jury will evaluate, not so much the testimony.

The important point to remember is before your witness ever speaks everyone in the courtroom is judging them on appearance and most importantly, their actions. Then when they eventually do speak, everything your witness says in their testimony will be instantly subconsciously evaluated against how they say it, and how their body language says it. When spoken language and body language match, people are more likely to be assumed to be truthful. Discontinuity sows dissent and disbelief.

If your witness stumbles or dis-communicates it puts your case at risk and even strong case can fall apart. If a key witness falters under pressure it sows disbelief and opens holes for opposition counsel to exploit. Proper witness preparation can defuse and prevent known "Hot Button" triggers and inoculate against a wide variety of unknown ones as well. Thus when opposition throws a nasty curve ball, it'll never make it across the plate.

Proper prep ensures that testimony given is clear, confident, and credible. It gives the judge and jury confidence that the witness is solid in their story and beliefs and is trustworthy. ​Whether it’s an expert witness explaining technical concepts or a lay witness recounting an event, the way testimony is delivered significantly affects how jurors interpret it.​

Words are only one part of the testimony. Often a very small part, in fact no more than 7%. Facial expressions, eye contact, timing of delivery, vocal tone and pattern, and other body language, all influence how their statements are perceived. Nervous habits, defensive postures, excessive hand movements or other phlegmata can also make a witness seem unreliable or uncertain. Each one of these has a cumulative add on effect to the others and they add up quite quickly.

Furthermore, unlike the actual 7% worth of words which can be stricken from the record, the images and opinions of the nonverbal communication the jury have seen can never be stricken from the minds of the jurors.​

​Body language significantly impact court cases, as jurors often interpret nonverbal cues like fidgeting, lack of eye contact, and poor posture as signs of untrustworthiness or nervousness. Witnesses who fail to maintain confident body language inadvertently undermine their credibility, potentially leading to unfavorable outcomes in their cases.

Therefore Preparation should include significant feedback on nonverbal communication and appropriate behavior modification to ensure the witness remain visibly calm, confident, and credible. Indeed a large portion of prep may need to be devoted to this. Better than half of your witnesses credibility rests on this, yet they never taught you how to read or work with Body Language or Behavior Modification in Law school.

Like many aspects of the law, testimony isn’t just about the facts. You need your witness to be capable of delivering a true story effectively. This means that preparing a witness for deposition or trial should lead them to:

• Behave properly in the courtroom. (They need to know precisely what conduct you expect in terms of process, standards, and demeanor)

• Speak convincingly and with authenticity. (Overcome poor communication habits)

• Deliver calm and concise testimony (Reduce public speaking fears)

• Remain 'Calm Under Fire" of cross (by preparing them for the curve balls prepare for cross examination)

All of this means you must properly assess and modify as needed their nonverbal communication.

This is not simply advising them about it, it cannot be done via verbal instructions alone. It needs effective education and reprogramming to eliminate the root causes of behaviors, not just put a coat of paint over the flaw and hope it holds up under a storm.

To be effective and "weather-proof" It requires internal awareness and changes in cognition and behavior so their physical responses are reprogrammed appropriately to convey confident, truthful rendition of facts.  Not caving under cross nor fidgeting, nor squirming or exploding from stress of routine testimony.

This is best done by person formally college trained, and street smart, in

biology - educational psychology - traumatology - functional medicine and performance improvement.

Check out our other posts in Witness Prep series to give you a better handle

on Psychology of Stress and Behavior Modification