Updated: May 18, 2020
If you are a lawyer who tries cases, you've probably asked yourself why witnesses struggle so much when they are deposed or cross-examined. A key reason has to do with the fact that your witness and the opposing attorney are following different sets of communication rules in these settings. To understand how this happens, we need to take a quick look at how the communication process typically works:
What's the goal of communication? At its most basic level it's to convey information and understanding from one person or party to another person or party. The graphic below represents how the communication process generally works when communication is effective.
The feedback cycle of the communication process is vital for understanding to take place. Feedback consists of both verbal and non-verbal cues the sender and receiver provide one another (e.g., questions, comments, facial expressions and body language). Without the appropriate feedback, the sender and receiver can never know if understanding is taking place. Important to this interaction is the fact that there's usually a common understanding as to what most feedback means and how to handle it.
The Litigation Problem
Opposing attorneys are not conducting depositions and cross-examinations to convey meaning and understanding with the witness. They're trying to strengthen their client's version of what the facts mean so they either get a favorable settlement or jury verdict. The witness is simply a means to those ends. These goals and the rules used to accomplish them are not what the witness is expecting. This puts the witness at an extreme disadvantage because the communication rules he normally uses (the only rules he knows), will not work in this setting. In fact, they will cause great difficulty, frustration and ultimately bad testimony.
Broken Feedback Cycle
Because opposing counsel enters depositions and cross-examination with a predetermined narrative of what the facts mean (or need to mean to strengthen his case), the feedback he gives will serve that purpose. It will not serve the purpose the witness is expecting: common understanding.
How Does it Work?
There are two common techniques:
1. Opposing counsel provides feedback that means the opposite of what it normally means, the witness treats the feedback like he might in the normal world and starts making mistakes in his testimony. For example, if the witness gives an answer that doesn't suit the attorney's narrative, the attorney might react with surprise, frustration, annoyance, sarcasm or aggression. The answer was likely correct and truthful but the attorney's reaction signaled there was something wrong with the answer. The witness then reacts to the feedback believing it's genuine and starts second guessing his answers, changing his answers, getting confused, becoming frustrated and sometimes becoming aggressive. None of which are good.
2. Opposing counsel accepts the facts provided by the witness and then breaks the feedback cycle by interpreting the meaning of those facts and arriving at conclusions that support his case narrative. Then he gets the witness to agree with those conclusions. What witnesses miss is that the interpretation is based on a mischaracterized version of what the witness said or the conclusion drawn is one of many possible (and probably more accurate) conclusions. Witnesses fall for this strategy because the interpretation/conclusions drawn by opposing counsel seem to follow logically from the facts, or simply sound reasonable. When this happens, witnesses don't even recognize that they've just damaged the case by agreeing to the opposition's narrative. Instead they feel like understanding is taking place - the goal of communication.
Everyday across the country witness testify poorly because they don't understand the communication game opposing attorneys are playing. This doesn't have to happen. Witnesses can learn how to communicate in the litigation setting and how to interpret what opposing counsel's feedback actually means and how to respond appropriately. But it takes time, effort and the right kind of feedback, given at the right time. When done properly, witnesses not only survive depositions and cross-examination, they thrive.
For more information on how to improve witness preparation, check out these posts:
Jeff Dougherty, M.S.
President - Litigation IQ
713 392 8135