June 2012 Bar Bulletin
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June 2012 Bar Bulletin

Critical Listening and Other Keys to Good Witness Performance

By Jonathan Lytle and R. Craig Smith

 

Preparing a witness to testify well, whether in deposition or in the courtroom, is a fundamental element of all good litigation, regardless on which side of the well you're on.

It is universally acknowledged that a courtroom is an unnatural and uncomfortable communications environment - all the more so in deposition where the rules allow questioning attorneys to get away with what judges would likely not allow in court. Thus, whether a witness has testified or been deposed multiple times, or whether it is his or her first venture into the labyrinth of examination and cross-examination, the experience may range from mildly intimidating to terrifying.

While the rules of the courtroom and deposition do differ somewhat, there are three key principles that, when recognized and well employed, lend well to good outcomes in either forum. Applying these principles will significantly increase the likelihood of a consistent, credible and trouble-free record if witnesses are properly informed and prepared.

Authenticity

Authenticity is the bedrock of credibility. Once involved in any litigation, whether as a party or a witness, the normalcy of day-to-day life changes whenever anyone is in the presence of others involved in the litigation. They are enveloped in what we refer to as the "litigation bubble," where nothing is the same as it is outside that bubble. The paradigm changes every time a lawyer walks into the room.

The witness, no matter how hard he or she may try to ignore it or to act normally, is under the microscope, even with his or her own attorneys. Since trial lawyers generally have little, if any, contact or communication with the witness outside of the litigation bubble, most lawyers have no idea of the witness's normal and natural conversational style outside of the bubble - and it is almost always very different than any case-related conversations that may take place between them.

The witness, even on his or her own turf, is guarded, assumptive and often skeptical of the whole process. Thus, having a non-lawyer who is skilled in basic communications principles and techniques conduct an "out of the bubble" conversation with the witness provides a more accurate picture of how the witness will be perceived during examination and cross. An assessment of how the witness communicates under normal, everyday circumstances is essential to capturing and capitalizing on the individual's authenticity.

A word about impressions. Most lawyers today recognize the value of videotaping depositions. In this environment, authenticity is most vulnerable to the tactics many attorneys use to undermine authenticity and to provoke damaging impressions that are captured forever on the video. Thus, making sure that your witness is well prepared and stays well within his or her individual sphere of authenticity is essential.


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