Witness Preparation and Mixed Martial Arts: What do they have in common?
Georges St-Pierre (a.k.a. GSP) is one of the greatest mixed martial artists of all time. As of this writing his professional record is 26 wins, 2 losses and 0 draws. In 2008, 2009, and 2010 he was named the Canadian athlete of the year (Sportsnet, 2010). He's one of only four mixed martial artists in history to be a multi-division champion and has been considered the top welterweight MMA fighter and the most accomplished MMA fighter of all time by Fight Matrix (2014).
So, just before a fight, what goes through Georges St-Pierre's mind in the locker room and as he makes his way to the Octagon? One would would be tempted to say he has a lot of positive thoughts and self-confidence, and for good reason, but one would be wrong.
Georges St-Pierre has described how he feels before fights on numerous occasions. He says he's "scared to death," "very nervous, and insecure," He also wonders why he didn't "stay in school, finish his degree and get a 9 to 5 job." And, he has "a lot of doubts in himself," and he's "afraid of being humiliated in front of everybody." But St-Pierre knows something about the importance of confidence and how the mind-body connection works, so he doesn't allow himself to wallow in self-doubt. Instead, Georges says that as he walks toward the Octagon, he acts confident physically. He "pretends" he's confident and that "it's impossible for him to fail" his "victory is a certainty" and "he's the best in the world" and "not afraid." As he behaves this way physically, he says his body "takes over" his mind and he "becomes confident for real." He says that as he's walking, he sees the change in his mind and as he reaches the Octagon he's "a different person," and he's "very confident." Georges cites the James-Lange theory as the mechanism for this process and he explains that "just as the mind can exert control over the body, the body can exert control over and actually change the thinking."
Interestingly, St-Pierre figured out this technique as a young boy long before his fighting career started. When he was young, St-Pierre was beat up repeatedly by neighborhood bullies. As a matter of survival he had to figure out how to deal with older, larger, and stronger boys who repeatedly bullied him. He learned that by carrying himself a certain way (shoulders back, standing tall, chest out) that two things happened, one internal and one external. Internally, he began to feel actual courage that he hadn't felt in the past, which allowed him to finally stand up to the bullies. Externally, he noticed that bullies didn't see him as an easy target when he stood tall with his shoulders back because he looked confident physically. Whether confronting a bully or a world class MMA opponent in the Octagon, Georges understands that confidence is vital to success.
What Does this Have to do with Witnesses and Juries? A Lot.
Confidence or the lack thereof plays an enormous role in a witness' ability to testify effectively both in the deposition and at trial. But it doesn't just affect the witness; it also impacts how the witness is assessed and handled by opposing counsel and how the witness is perceived (and believed or not) by the jury at trial. Because deposition and trial testimony are different, we will look at each scenario separately.
The deposition is the domain of attorneys, not witnesses, and in this setting, there's a lot of psychological gamesmanship perpetuated on unassuming witnesses by opposing counsel. The witness enters the deposition feeling some or all of the following: anxiety; frustration; anger; fear; annoyance; confusion; and even hatred (not only for opposing counsel, but sometimes for his own lawyer and the legal process in general). The questioning attorney enters the deposition confident that he can exploit these vulnerabilities and secure damaging testimony: what the witness says, how the witness says it, or both. This is of special consequence when the deposition is video recorded and can be shown to the jury at trial or used as leverage against defendants to settle the case for more than it's worth, or against plaintiffs to settle the case for less than its worth.
A powerful antidote to the perilous nature of the deposition for a witness is physical and verbal confidence. Physical Confidence is the way the witness enters the room, greets opposing counsel, takes a seat, adjusts the chair to his or her liking, owns the space, and maintains good body language throughout the deposition. Verbal Confidence is when the witness speaks with an affirmative tone of voice, controls the pace, pauses effectively, provides concise and responsive answers, and avoids caveats/filler phrases and weak language. I call the combination of physical and verbal confidence "Complete Confidence."
The effect of Complete Confidence has power benefits to the witness in the deposition setting:
A physical display of confidence boosts a witness' actual confidence, which helps lower anxiety and negative stress before the deposition begins (as described by Georges St-Pierre above).
Complete Confidence demonstrates competence and calm, and sends the message to opposing counsel that the witness is not an easy target.
If the deposition is video-recorded, Complete Confidence diminishes the likelihood of embarrassing or harmful video clips that can be used to discredit the witness at trial.
Complete Confidence complicates opposing counsel's decision tree analysis: settle now for an undesirable amount, or risk an adverse jury verdict (because the jurors will like, trust, and therefore believe the opposition's witnesses).
Jurors have a serious job to do and they don't take it lightly. They have to figure out which side is right and which side is wrong, or which side is lying and which side is telling the truth, and ultimately who should win and who should lose. Jurors' evaluations of each sides' witnesses plays a major role in their final verdicts. With the introduction of the jury and both direct- and cross-examination (and the potential for adverse testimony), trial testimony contains even more psychological variables than does the deposition, making witness confidence even more important.
The Confidence Heuristic
Why is confidence so important in front of a jury? Take a step away from the litigation setting and think about it: How many times have you decided to do something, buy something, invest in something, or follow someone's advice or directions because the person advising you spoke with absolute confidence? Everyone can relate to this scenario because everyone has experienced it. There's a name for this phenomenon – it's called the Confidence Heuristic (Thomas & McFadyen 1995). In essence, a "heuristic" is a an approach to solving complex problems with mental short cuts or practical methods, (e.g., the rule of thumb, profiling, intuition, common sense). These short cuts increase decision-making efficiency, but they often sacrifice logic, precision, and sound reasoning. Nevertheless, heuristics are part of everyday decision-making and people use them without awareness. Jury trials are fraught with the need for heuristic decision-making because the stakes are high, the information is complex, and jurors are faced with seemingly valid but polar opposite interpretations of evidence and they have to figure out who's "right" and who's "wrong." Not an easy task. For jurors, a solution to this complex problem is to try to figure out which witnesses to trust. And, among other variables, complete witness confidence plays a major role in whether or not jurors will trust and therefore believe a witness.
Witness confidence isn't the only variable that causes favorable or unfavorable verdicts but it plays a major role in whether a witness is believable and worthy of juror trust. Therefore it's vital that witnesses go into the deposition or trial with confidence. However, it's not enough to simply tell witnesses to be confident, witnesses have to learn how to be confident. This means acquiring strategies to manage the rigors of testifying; having a command of the facts; learning new communication strategies; understanding jury psychology; and having an understanding of the case themes, and theories. Most of all it requires realistic simulated practice with targeted feedback, performed until the witness not only says he or she feels confident, but actually demonstrates Complete Confidence under rigorous practice questioning.
Fight Matrix (2014). Computerized All-Time Mixed Martial Arts Rankings. Retrieved from http://www.fightmatrix.com/all-time-mma-rankings/
Price, Paul C. and Eric R. Stone, Intuitive Evaluation of Likelihood Judgment Producers: Evidence for a Confidence Heuristic, Journal of Behavioral Decision Making, Vol. 17, 39-57 (2004).
Sportsnet Staff (December 22, 2010). GSP three-peats as Sportsnet cdn AOTY. Retrieved from https://www.sportsnet.ca/more/gsp-athlete-of-the-year/
Thomas, J. P., & McFadyen, R. G. (1995). The confidence heuristic: A game-theoretic analysis. Journal of Economic Psychology, 16(1), 97–113.
Jeff Dougherty, M.S.
President - Litigation IQ
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