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Managing Communication: What Messages Are We Sending Our Witnesses?

By Brian Harris

The Problem Witness

Several years back, I did some witness work regarding a string of cases for an insurance company.  Witnesses were deposed repeatedly. One witness, in particular, was very popular with the plaintiffs counsel. He was an actuary who evaluated risk associated with each insured to determine premium rates, and opposing counsel often requested him by name. Let?s call him Mr. A. 

Upon review of Mr. A?s past videotaped depositions, it was clear why plaintiffs requested to depose him time and time again. He was terrible. He sat in deposition with arms crossed and snarling one-word answers or snide comments.   As a result, Mr. A came off as having a complete disregard toward the human beings behind the risk analyses he performed. Exactly the image of the insurance company the plaintiffs wanted on the record.

 Discovering the Cause of the Problem

In a witness preparation with Mr. A and his trial team, we reviewed some prior videotaped depositions. Then I did what no one had done before: I asked Mr. A what he thought. Here is a paraphrased glimpse of our conversation:

Q- So, what do you think about the testimony you just watched?

A-     I think it was terrible.

Q- What was terrible about it?

A- The way I keep answering questions with just one word.

Q- If you think it is terrible, why do you keep doing that?

A- Because that is what they (motions toward trial team) told me to do.

As I look over toward the team, I saw a room full of stunned faces.

As it turns out, Mr. A. had the tendency to be long-winded. He also was not well versed in the art of human communication. That said, he knew his business and had good messages to send.  Because of concerns about his gruff personality, though, the trial team told him, many depositions prior, to keep his answers short and answer either ?yes? or ?no? when he could. So, that was exactly what Mr. A did. He sacrificed his key messages to follow counsel?s literal instructions. And, boy, was he angry about it.

Fixing the Communication

Much of the time I spent in witness preparation with Mr. A focused on repairing communications between him and the team.  It became clear that much of Mr. A?s anger in depositions, often interpreted as having to do with irritation toward plaintiffs counsel, was actually about the short leash he felt he was on, perceiving that he was not permitted to give his complete answers.

When Mr. A. was finally given the opportunity to have a real dialogue with the team (as opposed to being talked at), his concerns, anxieties and opinions were heard, and the team finally understood why his testimony has been so terrible. Moreover, through this dialogue, Mr. A gleaned a better understanding of the context of the lawsuit and his place in it. He understood that he could and should add context to answers as long as it was directly responsive to questions.

In the end, it worked out for both trial team and witness. In subsequent depositions, Mr. A did much better and provided helpful messages for the defense. Plaintiffs eventually stopped asking for him by name.

So, I wonder, in our mad rush to get the work done, are we neglecting the most critical assets we have in our case ? the people who tell the story? 

Are you taking the time to sit down and have real dialogue with your witnesses? Not just about substance, but about concerns, anxieties and questions?  If you do, you just may learn something you will be glad you knew before the video camera is turned on. 

Melissa M. Gomez, Ph.D. is a jury consultant and owner of MMG Jury Consulting, LLC. She holds a Ph.D. in psychology from the University of Pennsylvania. Her experience includes work on more than 100 jury trials in Philadelphia and across the country, with a focus on the psychology of juror learning, behavior and decision-making. She has more than a decade of expertise in research design and methodology, as well as in behavioral and communication skills training.

This posting is for general informational purposes only and should not be construed or interpreted as advice specific to any matter. Each case is different and no strategy applies uniformly to all.

If you have any questions regarding jury psychology that you would like to see addressed in this blog, please contact Gomez at melissa@mmgjury.com or call 215-292-7956.

Melissa M. Gomez, Ph.D.
MMG Jury Consulting, LLC
www.mmgjury.com

Full post as published by The Legal Intelligencer Blog on June 11, 2009 (boomark / email).