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Witness Preparation - Beware of the Learning Dip

Updated: Dec 23, 2022


What do tennis lessons and witness preparation have in common?


Read on, you won't be disappointed.


I played a lot of tennis in my 20s, and I was pretty decent at times, but I was also inconsistent. For the most part I was self-taught. OK, not totally self-taught. When I was young my parents enrolled my sister and me in a couple of summer sessions at the local park and rec., but that was about all the instruction I ever got.


Back to the story... When I played as an adult, I hit the ball pretty hard, and sometimes I'd hit a winner, other times I'd hit into the net, and still other times I'd hit the ball long. The problem was, I never knew why I'd hit it well one shot, and the very next shot the ball would go straight to the bottom of the net. Needless to say, I had a lot of very frustrating days out on the court. It seemed that no matter how many hours I spent playing/practicing, I had reached a plateau and couldn't get any better.


Most of the days I played, I would see this young man coaching other tennis players individually, and I noticed how well all of his students played. Their strokes looked immaculate (if you play tennis, you'll know what I mean... it's like an art form), they were consistent and they seemed to be able to keep the ball in play forever. That's what I wanted, so I hired him.


The first thing he told me was "we're gonna start from scratch." My reaction was "great, this is going to be a big waste of time... I already 'know' how to play... hasn't he seen me out here?... why won't he just fix whatever I'm doing wrong?" But thankfully I swallowed my pride and went with the program. Our first lesson started with how to hold a tennis racquet correctly. Then we moved to the backswing, and repeatedly practice the mechanics of a proper backswing, and it went, on and on and on with the basics.


It got interesting when we got to the serve (and this is where I will relate the story to witness preparation, so hang tight and keep reading).


He told me that I need to use a continental grip for the serve (I had previously been using a western grip). This seemed like extremely strange advice. It felt weird, awkward, and it was counterintuitive and totally foreign. But again, I went with the plan, expecting my serves to improve immediately. But my coach cautioned me: "your serves are gonna get worse at first; in fact, you'll probably hit it way wide and maybe into the ground in front of the net." I can picture it as though it were yesterday (and it's been 26 years). I did exactly as he predicted, my serves became terrible, and I became frustrated. This is the "learning dip." The phenomenon that when something new is introduced, that's designed to improve performance, or productivity, the target behavior usually gets worse before it gets better. It looks something like this:

Eventually, with specific targeted feedback from my coach, my serves started getting better, and over time, with the right practice and hard work, my serves far exceeded the plateau I had reached before I hired my coach. I was able to start doing things I could never do before (flat serves, slice serves, and eventually pretty good kick serves). And, now with a topspin serve in my arsenal, my second serves were more of a weapon than a liability (like they used to be).


Why do I tell this story? It's about the "learning dip" that inevitably came before the improvement.


How does this apply to witnesses?


When I prepare witnesses to testify, I teach them a new way to communicate, which consists of new ways to think about questions, new ways to respond to questions, new ways to interpret and respond to communication cues from opposing counsel, and new ways to deal with what feels like attacks (see here, here and here for more detail). For every witness, these new ways to communicate, much like using a continental grip for a serve, feel awkward, unnatural, and counterintuitive. Further, these new skills are often the opposite of the communication skills witnesses have successfully used in their social and professional lives. The fact is that normally effective communication skills fall flat in depositions and at trial.


Effective witness requires rigorous and realistic practice sessions. Part of this practice must include learning how to implement all the new skills they've just been taught, and to provide them targeted feedback at the right moments so their behavior can be shaped in the right way. During such practice, just as my serve got worse before it got better, every witness' ability to communicate as a witness will get worse before it gets better, and it's crucial to prepare them for this before you start practicing. If not, their confidence will deteriorate and they might never recover, even to the level they were before your preparation session.


Why is this so important? A key component to a witness' ability to testify effectively is genuine confidence (see here for more on the importance of confidence for witnesses). Anytime a person feels like he or she is failing at a task, confidence decreases, and frustration and self-doubt increase. When it comes to testifying, this combination also leads to an increase in anxiety, because the lawsuit isn't going away, and the result of poor testimony can be devastating long-term consequences for the witness. If the witness loses confidence during witness preparation, and never regains it, they will be worse than if you had never prepared them in the first place.

 

For more advice from a jury consultant, check out the following blog posts:

 

Jeff Dougherty, M.S.

President - Litigation IQ





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