Effectively preparing witnesses for their testimony is crucial to ensure positive outcomes. As witness performance can significantly impact settlements, verdict results, and damage awards, the strength and credibility of witnesses in depositions and during trials have become crucially important. Mitigate risk and achieve superior results by avoiding these four psychological causes of witness testimony errors.

How can attorneys prevent witness mistakes during testimony?

Full and properly preparing witnesses for their testimony is a crucial step to ensure positive outcomes. The most effective way to avoid potentially devastating psychological mistakes is to provide your witness with sophisticated neurocognitive training. Witnesses that have been fully trained and prepped can recognize pitfalls to ensure they deliver testimony that is honest and accurate but not damaging to your case. 

#1 Yerkes-Dodson Law

Yerkes-Dodson Law suggests there is a relationship between performance and arousal. Increased arousal can help improve performance, but only up to a certain point. At the point when arousal becomes excessive, performance diminishes. You want to find the sweet spot: too much or too little results in diminished performance.

For witnesses, the low end of arousal might be a witness who has been deposed four or five times, feels comfortable with the process, and feels confident that they won’t be ‘tricked’ by opposing counsel. Unfortunately, due to this increased comfort level, the witness may become prone to long-winded or rambling explanations because they no longer feel concerned about ensuring that their answers are concise. 

On the other end of the spectrum, first-time witnesses are overly worried about how to answer each question. What ends up happening is rather than just answering the question, they are so concerned about using the correct words that they make careless blunders. 

When working with witnesses, it’s crucial to include mock questioning because it allows the witnesses to practice in a safe space to get more comfortable before deposition. That doesn’t mean they won’t feel some anxiety. That’s fine because some level of nervousness will allow them to perform at a peak level.

#2 The Dunning-Kruger Effect 

The Dunning-Kruger effect is a cognitive bias in which people believe they are smarter and more capable than they actually are. Consider this example: when asking a group of individuals whether or not they believe themselves to be good drivers, most will self-report as good drivers. At the same time, most of those individuals say that most drivers are not good drivers. These two ideas are contradictory; most individuals cannot simultaneously be good and bad drivers. The reason for this is that we evaluate our own abilities much higher than we do others’ abilities. 

This frequently happens in instances where someone is not experienced in that area. Low-ability people do not possess the skills to recognize their incompetence. Let’s apply the concept to when a witness claims they would never exhibit a particular behavior. Some examples include giving long-winded explanations or becoming argumentative, and that only other people behave in such a manner. It’s likely that they simply don’t recognize that tendency in themselves.

A witness may claim that they would only give concise answers, only for witness preparation to reveal them to be a person who argues, becomes defensive, gives long-winded answers, or behaves in other ways they believe themselves incapable. What often helps in these situations is to point out mistakes to the witness as the witness makes them, increasing awareness of what they are doing. This can also help the witness become more receptive to additional feedback regarding their performance. 

#3 Evaluation Apprehension

Evaluation apprehension is the natural human fear of being evaluated. This creates a lot of anxiety in individuals because they are concerned about how they are perceived by others watching them and their performance. In the case of witnesses, evaluation apprehension causes stress during deposition and trial as they become anxious about giving an answer that opposing counsel will not like. 

Witnesses often become apprehensive about saying something that will cause opposing counsel to call into question their knowledge, credibility, or believability. They may be concerned that their answers will make them look foolish. This evaluation apprehension may even lead witnesses to try to start giving answers that opposing counsel agrees with, which may give them the feeling of being more credible in the moment. Suppose opposing counsel is giving the witness the impression they are happy with the witness's answers. In reality, that witness is likely doing the opposite of what they should be doing.  

Instead, witnesses need the training to understand that it’s okay to feel that apprehension. These witnesses need to know that whether or not opposing counsel thinks you’re credible or is happy with your responses is unimportant. Instead, witnesses need to be taught that if opposing counsel is upset or angry, it’s likely because they are good witnesses. 

#4 "Thin-slicing."

“Thin-slicing” is the idea that individuals tend to take tiny pieces of information and make decisions quickly based on that snippet of information. While “thin-slicing” is a notion that’s been around for a while, it became more popular with Malcolm Gladwell's book “Blink.”

When it comes to witnesses, individuals may use small, two to five-second interactions to create a value judgment about that person, deciding if they like them, if they find them credible, or if they believe them to be knowledgeable.  

“Thin-slicing” may come into play if a witness’s deposition is recorded so that snippets of that testimony could be played back later for jurors. It’s vital to ensure those sound bites show a witness to be appropriate, credible, and knowledgeable. Trial attorneys certainly don’t want the possibility of a snippet that could portray their witness as being argumentative or difficult. Suppose that snippet will be the information jurors use to develop a concept of how credible a witness is. In situation where opposing counsel may wish to use a snippet of your witness, trial attorneys will want their witness to appear calm, credible, and fully prepared for testimony. 

Courtroom Sciences can help trial attorneys avoid these critical mistakes through focused witness effectiveness training. Our psychology experts deliver sophisticated neuro-cognitive training that ensures your witnesses are fully prepared for testimony and prevents them from making errors that can devastate your case. 

Speak with one of our experts to get started. 

Key Takeaways

●  Four psychological concepts may explain why some witnesses make mistakes in their witness testimony performance: Yerkes-Dodson Law, the Dunning-Kruger effect, evaluation apprehension, and “thin-slicing.”

●  Yerkes-Dodson Law says that increased arousal can help improve witness performance but only up to a certain point. At the point when arousal becomes excessive, performance diminishes. 

●  The Dunning-Kruger effect explains how when a witness claims that they would never exhibit a particular behavior, it’s likely that they simply don’t recognize that tendency in themselves. 

●  For witnesses, evaluation apprehension can create a lot of anxiety because they are concerned about how they are perceived by others watching them and their performance.

●  “Thin-slicing” may cause individuals to use small, two to five-second interactions to create a value judgment about a witness and their credibility.

●  Courtroom Sciences can help trial attorneys avoid these critical witness testimony errors through focused witness effectiveness training.