As jury consultant, I've always maintained that witness preparation, done right, is therapeutic for the witness. Thankfully over the years witnesses have told me it is.
When I use the term "therapeutic," I want to be clear that I'm not talking about a psychotherapy session with a licensed clinician.
So what am I talking about?
Let's first start by setting the litigation scene. Most people who find themselves in a lawsuit either as a plaintiff or a defendant typically aren't happy about the fact that they are involved in litigation. It's disruptive to their lives, and it usually means something bad, even catastrophic has happened. For the plaintiff, it means they or a loved one has suffered a potentially life altering event. For example, they or a family member might have been maimed or mutilated in some sort of industrial accident, or a maybe someone close to them has died because of the purported negligence of another person or entity. For the defendant, it means they've been blamed for whatever bad thing that has happened to the plaintiff or his or her family member. Needless to say, most people would never voluntarily sign up to be in either position.
If the scenario outlined above isn't stressful enough, add to it the massively disruptive, time consuming, intrusive, expensive, emotionally and physically draining aspect of the litigation process itself. And that's before the parties ever have to testify.
Testifying: This is where things become even more stressful.
In over two decades in this field, I've seen the range of negative emotions and feelings witnesses experience as a result of litigation generally, but more specifically as the prospect of testifying gets closer. Below are some examples:
Anxiety - They've never testified before and they don't know how to deal with being cross examined (or deposed), and it's the unknown, which is always anxiety provoking.
Frustration - There's a saying amongst non-lawyers: "the only people who win in litigation are the attorneys." Defendants feel wrongly blamed/accused and plaintiffs have to wait years for justice... if they ever get it. The wheels of justice turn slowly - and are expensive.
Fear - E.g., being made to look like a fool by opposing counsel, losing the case and all the consequences that accompany a loss, losing their reputation/ability to make a living (and the list goes on).
Anger - Defendants who feel unjustly blamed for something can experience anger that "this is even allowed to happen to them." Plaintiffs who have been harmed in some way could be feeling anger toward the defendant.
Helplessness - For defendants, they're at the mercy of the plaintiff or an insurer, and there's nothing they can do to make the case go away. For plaintiffs, they can't get the other side to "do the right thing," or for justice to ever occur.
Confusion - The legal process is unfamiliar and it seems like some esoteric game amongst the legal professionals. Witnesses don't know how to navigate their role in this game and they feel like outsiders.
Stress - The parties' lives are turned upside down by the litigation process, often times for years on end. Litigation brings out the worst in people.
Etc.
Consider the above list of emotions/feelings and imagine it's you who's experiencing them. Now imagine being asked to spend hour upon hour, even day upon day with a team of lawyers preparing you to remember a bunch of facts, "witness dos and don'ts," case themes/theories, trouble areas, nuances, strategies, etc. If that's not enough, remember this is all in the context of preparing to "go to battle," with an opponent who's mastered the art of adversarial questioning, and you're not even a novice at answering questions in the adversarial setting. How's the preparation session going to go? Not well.
Back to the question, is witness preparation therapeutic? It must be.
Early on as an integral part of witness preparation, the negative emotions and feelings witnesses will be certain to be suffering must be identified, addressed, and resolved (to the greatest extent possible).* This process alone is therapeutic for the witness. I see it happen in almost every witness preparation session I conduct, and it's almost like a light switch gets flipped. For example, witnesses who were disengaged, visibly nervous, combative, uncooperative, etc. become engaged, calm, collaborative, and cooperative. But how?
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Attorney's don't have to be psychotherapists to make the preparation sessions therapeutic. What they need, is to show genuine concern for the person who has to testify. For example, find out what that person fears most about testifying? What's concerning him about the lawsuit generally? What does he envision as "the worst thing that can happen" while testifying (or after)? What's making him angry? What worries him the most as he envisions himself in the deposition or on the witness stand? What question/s does he hope he doesn't get from the opposing lawyer? It sounds like a lot and you might be wondering how it is that you can uncover these concerns. The beauty is that all it takes is to ask. But asking isn't enough, you must listen, and listen in the right way. Here are a few musts in this regard:
Let the witness finish the thought before trying to "fix" the concern.
Acknowledge the concern as understandable.
Be patient. Sometimes it takes a while for the witness to find the words to articulate what's on his or her mind.
Give the witness permission to speak freely.
Don't rush the process.
Actually care about the response. E.g., don't check emails or your phone while the witness is opening up to you. Reflect back to the witness what they've expressed to show you've heard and understand their concern.
It's amazing what you will learn through this process. Sometimes the witness will have a deeply held, but unfounded fear that is easily resolvable. For example, "I'm going to lose my home if we lose this lawsuit." Other times you might uncover some frustration that the witness has never felt he was allowed to express. The list of what you might uncover is long, and the process of going through this exercise can be uncomfortable (the witness might break down and start crying). But the payoff is invaluable because the barriers to the witness' ability to engage in the process will be greatly diminished if not eliminated altogether.
So the answer to the title of this article is: No, witness preparation is not therapy, but it must be therapeutic.
*I include the caveat "to the extent possible" because sometimes there's no resolution; only coping skills for whatever is unresolved.
For more advice on how to improve witness preparation, check out these posts:
Jeff Dougherty, M.S.
President - Litigation IQ
713 392 8135
Jeff@LitigationIQ.com
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