It was Ralph Waldo Emerson who said, “Fear always springs from ignorance.” You know the feeling. It comes when you look in the rear-view mirror and see flashing police lights.
That is how most people feel when they receive a deposition notice or subpoena. The legal system can be intimidating even to those of us who are familiar with it. It is certainly intimidating, if not down right fear inducing, to a layperson who receives a subpoena.
It is important to deal with a witness’s normal fear of the legal system. It probably is part of our professional responsibility as lawyers. It can also help you prove your case by making the witness’s testimony and appearance more persuasive.
The Problem
A nervous and fearful witness does not establish credibility with the judge or jury. A witness plagued by fear may resort to any number of nervous habits: knuckle-cracking, nail-biting, restlessness or evasive and furtive glances. Perhaps worse is the nervous or fearful witness who hurries answers, loses his or her way with rambling responses, gets angry or simply “forgets” the crucial facts upon which your case depends.
At best, these reactions are distracting. At worst, they are misleading or even fatal to your case. The witness may be unaware of his or her nervous habits. However, the jury is certainly paying attention and gleaning meaning from your witness as he rubs his brow, crosses and uncrosses his legs and looks around for some validation.
Solutions
The problems of a fearful witness should be addressed. The preamble of the Rules of Professional Conduct sets forth that a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system. This should include taking the time to address witness fears head on.
An important way to lessen witness fear in a litigation setting is to spend time preparing your witness for the process. This should result in a more relaxed and effective witness.
There are many aspects to preparing witnesses for testifying. This article will focus on those that assist the lay witness in being more comfortable with the system and in being a good witness.
Discussing the facts and context of the case and pertinent documents upon which a witness is likely to be cross-examined also are very important. Certainly, a lack of familiarity with the facts and documents seriously adds to the fear factor. However, those matters relating to basic preparation of the facts of the case are beyond the scope of this article.
Orient the Witness: Uncertainty breeds fear. Lack of familiarity breeds fear. Not knowing what to expect or what is expected of oneself breeds fear. All of these things are easy to address by simply explaining the process to the witness.
Witnesses often receive a subpoena or a request for a deposition or testimony without any explanation of what is expected of them. This is easy to fix. Do not assume that a witness knows what to do or what is expected of him or her when you send out a deposition notice or a subpoena. If you are ethically allowed to contact the witness, do so. Offer to explain what is going on in the case and what they should expect to occur at the deposition or the hearing.
Simplify: Too much information can cause fear. Simplifying what you are communicating to the lay witness will help alleviate fear. It also should help the witness stay on track and be a better witness.
Many articles and handouts frequently given to prepare witnesses for the process unnecessarily complicate the matter. Some include long lists of “dos and don’ts” for a witness. These increase a witness’s anxiety level. Simplify the process. Giving the witness seven simple rules is enough for them to remember and to help alleviate their fear.
The Seven Rules
People can remember seven things. They cannot remember pages and pages of “dos and don’ts.” A lay witness can remember seven simple, plain English rules about how to be a good witness that will significantly reduce their fear.
We give witnesses three objectives in addition to giving seven rules. These objectives are to give them a context that they understand and to which they normally feel some affinity. Those objectives are: (1) to answer questions accurately (or truthfully); (2) to make a good impression; and (3) to get done as quickly as possible. Almost every lay witness will buy into these objectives.
The seven rules help witnesses meet those three simple objectives. As designed, these rules will not compromise the credibility of the witness or the attorney giving them if they are repeated in front of the jury.
Rule No. 1: Listen to the question. Amazingly, witnesses need to be reminded of this. Witnesses also need to be told that they should not answer a question if they did not hear all of it or if they cannot remember it. Reassuring them of their power to ask for a question to be repeated or read back goes a long way to allaying fears of many witnesses. It also makes for a better witness.
Rule No. 2: Do you understand the question? Once again, it is amazing how many witnesses need this basic framework to allay their fears and to do a good job as a witness. Witnesses need to be told that if they do not understand the question, they cannot accurately answer it. Most witnesses will not know, if they have not been told, that they can ask for a question to be rephrased or explained.
Rule No. 3: Do you know the answer? Many witnesses do not realize how appropriately they can answer, “I do not know.” Many think they must come up with an answer. Witnesses must be reminded that it is okay to not know something or to not remember something (when that is true).
Rule No. 4: Are you qualified to answer the question? Once again, a lay witness will not realize, without being told, that it is okay to say that an opinion that is called for is beyond their area of expertise or beyond their comfort zone. Explaining what a lack of foundation objection means in the context of this rule can be helpful. But reiterate that it is the witness’s own comfort zone that determines whether or not he or she can answer an opinion question.
Rule No. 5: Do not guess, speculate or conjecture. No matter how many times you tell witnesses this rule, they will need to be reminded. Almost every witness will make references to guessing about an answer during the context of the deposition. Explain how easy it is for a witness to conjecture himself or herself into a deep hole.
Rule No. 6: Answer the question that was asked. This seems simple enough. But the witness must understand that in most cases, less is more; a deposition is not the time to “tell their side of the story.” Narrative answers may be appropriate, but the witness should not set out to win any converts during the course of a deposition. Answers must always be accurate and truthful, but take the time to explain to the witness that concise responses are usually best.
Rule No. 7: Shut up! The witness should understand that he or she is not there to entertain or to fill silence. A witness that is able to follow these rules and provide concise and accurate answers will make a good impression. A rambling witness has gotten off track and needs to refocus.
Seeing flashing police lights in the rear-view mirror does not necessarily mean we are in trouble. Recall that sense of relief as those lights go speeding by. Lawyers can provide similar relief to fearful witnesses. Address their fears head on. A simple explanation of the seven rules set out above should take most witness fear out of the equation.
A lawyer has obligations to the public under the Rules of Professional Conduct. It is in the client’s best interest to make sure witnesses are prepared and make a good appearance while giving testimony. A prepared witness is calm and confident and provides credible testimony. An unprepared and fearful witness is truly something to fear.
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Christopher Howard and Jennifer Wyatt are attorneys in the Seattle office of Schwabe, Williamson & Wyatt. Howard can be reached at 206-407-1524 or choward@schwabe.com, and Wyatt can be reached at 206-407-1537 or jwyatt@schwabe.com.
