Managing Competing Priorities In Witness Preparation - Mr. Mark Smith, LL.M., CLDP

Recently, the presidents of Harvard University, the University of Pennsylvania and the Massachusetts Institute of Technology drew criticism for their congressional testimony related to antisemitism on college campuses. Penn President Liz Magill ultimately resigned from her position because of the criticism.[1] Harvard President Claudine Gay also resigned on Jan. 2, due in part to the backlash her comments received. In the weeks leading up to her resignation, Gay apologized for her remarks and stated, "I got caught up in what had become at that point, an extended, combative exchange about policies and procedures. … I failed to convey what is my truth."[2] While the criticism of the presidents' testimony is understandable, what is also understandable is that there were likely competing priorities in the process leading up to the testimony. In other words, there was probably tension between what the university presidents probably knew they should have said — i.e., "Yes, calling for the genocide of Jews violates their school's code of conduct," and what they were likely told to say, i.e., in the words of Magill, "it is ... context-dependent." Such competing priorities are commonly seen in preparing for deposition testimony, as well. This article takes a closer look at these competing priorities, and discusses ways to remedy them. Discrepancy in Goals Between Attorneys and Witnesses There is often a divide between what attorneys want and what witnesses want out of the deposition process. Attorneys want their witnesses to perform well. In other words, they do not want them to do or say anything that may harm the case. They want them to stand firm, spot any traps and react appropriately. If they are working with advanced witnesses responsible for carrying strategy forward — e.g., corporate representatives — they probably also want to make sure the witnesses clearly and succinctly get across the case themes. For most witnesses, their goal is to get out of the deposition in one piece. They do not want to mess up. They want to make everyone happy. But, most of all, they want it over with. The deposition experience is, at best, stressful, and, at worst, an overwhelming tidal wave of emotion. Either way, witnesses — like all humans — seek safety and security.[3] This typically shows up in a fight, flight or freeze response. Individuals gravitate toward built-in responses to external stimuli, like an uncontrollable emotional reaction, i.e., hyperarousal; shutting down and doing whatever is necessary to get it to stop, i.e., hypoarousal; or becoming numb. This numbness is a dissociative response: Individuals no longer have the sense they have any stake in the game. Things cease to matter. Anything goes. They have given up. Witnesses often report that their stress level increases anytime they receive an email or phone call from their attorneys. Without realizing it, some attorneys are retraumatizing their witnesses with each contact because it reminds the witnesses — especially those who have been involved in a catastrophic injury — of one of the worst days of their lives. It also reminds them that no matter how hard they may try to avoid the litigation process, it is unlikely to go away until they sit down and answer accusatory questions from opposing counsel. This remains the case no matter which side of litigation you are on. Plaintiffs and family members have unique stressors when testifying, as do named defendants, corporate representatives and company owners. How can attorneys resolve this tension? Can anything be done to incorporate both sets of priorities? We believe things can be done to minimize this tension, if not totally resolve it. But first, we need to backtrack and consider how the inherent lack of autonomy often projected onto witnesses inhibits the "good performance" everyone is seeking. Tackling Some Assumptions Why is there an assumption that testifying witnesses will happily oblige the legal team's view of the case and perform as directed without question? Why are some attorneys and clients willing to dismiss, or fail to consider, witnesses' perspectives, thoughts, feelings and reactions to the situation the witnesses find themselves in? Many witnesses decidedly do not want to be involved in litigation — many, in fact, would do almost anything to not be involved. Many are doing what they can to grit their teeth and make it through the process unscathed — attempt to perform well, meet the team's expectations and avoid embarrassing themselves. Attorneys tell witnesses to listen carefully, pay close attention to the question, take their time, do not speculate and stay calm. That is a simplistic approach to a situation that is more likely to be full of emotional land mines, manipulative questions and confusing tactics. Most of us do not spend hours in the ticking time bomb-esque feeling of a deposition or trial testimony. Attorneys with years of experience navigating the legal system are conditioned to accept the emotionality inherent in it — the ups and downs of litigation are normalized, expected and prepared for. But what about for those unfamiliar with such a situation? There is a painful fact about human behavior: You can tell someone to do something differently multiple times; however, that does not necessarily mean they have the capacity to change on command. Humans are not that simple. These things require a little more understanding and a little more work. Understanding how to empower behavior change means understanding that it begins with putting the witness at the center of the preparation process. This is what ensures good testimony. Resolving the Tension Between Priorities and Maximizing Preparation One of the first ways to resolve the tension created by competing priorities in deposition preparation is for the attorney to shift their mindset. It is a different thing to enter the preparation room with a prebuilt idea that witnesses are there to perform for the team, versus entering the room genuinely curious about witnesses' perspectives, fears and abilities. This involves asking open-ended questions and building rapport with the witness — an individual who is enduring something difficult. This also involves acknowledging that the situation can be tough, and not rushing to convince the witness otherwise. Taking the time to discuss these concerns and build rapport with witnesses is something that attorneys often overlook. Sometimes, attorneys will try to bypass the rapport-building process with witnesses and get straight to the mock questions. Some of them view building rapport and allowing witnesses to seemingly dump their emotions as a waste of precious time that could be better spent practicing answering questions and honing responses that support the case narrative. While the mock cross-examination process is vital to preparing witnesses for testimony, this process is useless if witnesses are not engaged, feel unheard or are carrying emotional baggage. Interestingly, some witnesses want to bypass the extensive training it takes to be a "good" witness and do not want to discuss how the litigation is affecting them. When attorneys oblige the witness's request to get on to the mock cross-examination questions, there is almost always a point during the preparation process in which the witness's walls begin coming down, and their underlying feelings emerge — it just had to happen on their time. Sometimes it is a document that elicits this reaction; sometimes it is a line of questioning during the mock cross-examination. Regardless of when it happens, that is the moment when the focus must shift away from the mock cross-examination questions and shift to addressing these underlying emotions and concerns. The focus on a positive outcome can cloud the team's perspective. If witnesses sense the litigation team is prioritizing a good result and concentrating on "doing well" above all, it can be difficult for the witness to acknowledge any fears around their ability to meet those expectations. The team needs to establish a climate of psychological safety, where it is clear there will not be negative consequences for acknowledging reality — even an uncomfortable, less-than-perfect one. Attorneys should meet witnesses where they are. Despite your structured witness preparation processes, witness preparation should still look different every time. It must ultimately be driven by, and focused on, the unique needs of whoever is in front of you. Attorneys and clients should also consider letting witnesses in and showing them what is going on behind the scenes in the litigation. For example, how will their "yes" response to one question be used against them later in the deposition? What is the purpose of opposing counsel showing witnesses a specific document — i.e., how does this document tie into opposing counsel's case narrative? What are the bad facts that opposing counsel will point out to try and elicit a defensive or emotional reaction from the witnesses? While we respect the need to be cautious about disclosure and discovery issues when letting witnesses know more about the case, giving them a sense of ownership over what is happening is essential. They are the ones navigating a hard situation. Yet, the litigation team sometimes fails to offer padding for the toughness. Somewhat counterintuitively, putting everything on the table helps dissipate the tension and encourage witness cohesion with the litigation strategy. Trust among the litigation team, including the witness, is essential. The team needs to hear — bad or good — what witnesses know, remember and think about critical elements of the case. Attorneys should not want to be surprised during testimony. There are horror stories recounting how attorneys have learned of witnesses' criminal histories during the deposition. This most likely occurred because the attorneys did not take the time to learn more about their witnesses before deposition. Their preparation likely focused more on the case facts, and not on a holistic view of the person who was testifying. Incorporating Behavioral Science in Litigation It is also worth noting that motivation goes a long way in making it easier for people to do hard things. Research suggests that when people are in social contexts that support their unique intrinsic or extrinsic motivations for engaging in a task, and when people are given autonomy — when they are allowed to have needs of their own within that task — they have higher levels of motivation, and ultimately perform better.[4] Witnesses are no different. Some witnesses are motivated by a team's support and understanding of their unique life circumstances. As an example, this could mean the team meets at an ideal location for the witnesses, but out of the way for the litigation team. It could also mean the team takes the time to bring witnesses to the courtroom before trial testimony to help normalize an unfamiliar environment. Perhaps preparation involves a mental health component, where witnesses get an opportunity to express their anxieties and receive support for their present situation. All these legal team concessions can help motivate witnesses to endure the extensive deposition or trial testimony preparation process. Conclusion Witness preparation involves a power differential: The witness is subordinate to rules obliging them to speak truthfully, which requires significant vulnerability on their part. The litigation team, meanwhile, has no such mandate. Their vulnerabilities are not exposed in the same manner. Ultimately, witnesses are the only ones executing what is being prepared for. They are the performers, asked to spend time in a hard situation from which they may receive little to no benefit. Litigation teams that have empathy with this situation will facilitate better connections, establish greater trust and create conditions where witnesses are comfortable sharing opinions and recollections that help the discovery and strategic process. Ava Hernández is a litigation consultant and Steve Wood, Ph.D., is a senior litigation consultant at Courtroom Sciences Inc. The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice. [1] Arkin, D. (2023, December 9). University of Pennsylvania president steps down amid criticism of antisemitism testimony. NBC News. https://www.nbcnews.com/news/us-news/university-pennsylvania-president-steps-criticism-antisemitism-testimo-rcna128712. [2] Arkin, D. (2023, December 12). Harvard president to stay amid outcry over antisemitism testimony. NBC News. https://www.nbcnews.com/news/us-news/harvard-president-claudine-gay-staying-rcna129178. [3] Mcleod, S. (2023, November 24). Maslow's hierarchy of needs. Simply Psychology. https://www.simplypsychology.org/maslow.html. [4] Edward L. Deci & Richard M. Ryan (2000) The "what" and "why" of goal pursuits: Human needs and the self-determination of behavior. Psychological Inquiry, 11(4), 227-268. doi: 10.1207/S15327965PLI1104_01.