By Dr. Ken Broda Bahm:
Lawsuits rarely occur as a result of something good happening. More often, there has been some kind of very bad outcome, maybe even a tragedy. For people who are close to the events that give rise to a suit, it can be hard to avoid absorbing and personalizing some of those negative emotions. For a witness called to testify in deposition or in trial, there might be a strong temptation to mentally reconstruct a bad event with a focus on how it could have been avoided. Maybe there is a tendency to blame yourself. Or maybe there is just a strong wish that it could have turned out differently.
Whatever the source, it is critical for a witness to come to terms with these thoughts before testifying. A common human regret can be easily misread as responsibility, self-doubt, or guilt. When a witness has normal human feelings about a traumatizing event, those feelings don’t need to be quashed, but as part of the witness preparation process, they do need to be addressed. Ultimately, witnesses need to work carefully with their legal teams to make sure that the emotions aren’t overwhelming the substance of the testimony or creating the wrong impression for fact-finders who see the testimony. In this post, I will share five ideas for increasing the chances that remorse won’t get the better of you as a witness.
1. Distinguish Between Feeling Bad and Feeling Guilty
Most often when a witness comes across as guilty, it isn’t because they’ve done anything wrong. Rather it is because they just wish things had gone better. You wish the operation had gone as planned, wish the business deal had gone through, or wish the injury simply could have been avoided. Acknowledging a disappointment over a negative outcome is okay, and it may even help you come across as credible, sincere, and human. But in your mind, it is critical to make that clear distinction: Feeling regret over the outcome is not the same thing as feeling blame.
2. Behaviors First, Feelings Second
In therapy, it makes sense to address the psychological foundation first. And if there is a long gap before testimony happens, that might be worth doing. There are counsellors who specialize in working with testifying witnesses on that front. But if the testimony is occurring in a shorter timeframe, it is a lot less likely that you’re going to have the time to fix the feelings before taking the stand. In that context, and for the purpose of making it though the testimony, the important thing is to focus on your behaviors. That includes both what you say and how you sound when saying it — research shows that nonverbal behaviors matter more than verbal cues in the case of interpreting remorse (Corwin et al., 2012). While a full psychological accounting will obviously require attention to both your actions and your thoughts, when you’re preparing for imminent testimony, you’re better off with a clear focus on behaviors.
3. One Question at a Time
One of the most important behaviors is to focus specifically on the questions being asked. The question “How do you feel about that?” may come up, and if it does, it is okay to answer with some honest feelings: It’s a bad outcome, you wish it could have ended differently (see #1). But if that question doesn’t come up, then sharing how you feel about it is not going to be responsive. As a witness, you’re best off remembering that what you’re addressing is the question on the floor, not the whole situation.
4. Keep to Your Lane
You should also remember that, while you are responsible for answering quesitons about what you know, thought, or did, you aren’t responsible for the actions or thoughts of anyone else. You aren’t carrying the whole case on your back. The testimony is going to focus on you and your own personal lane through the trial story: Know that lane, and stick to just that lane. Fundamentally, the questions will boil down to several iterations of “What did you do and why?” so come prepared to answer that, and not to drift off into discussing things that are outside of your expertise and factual knowledge.
5. Desensitize
Even while you understand that you aren’t responsible for the whole case, it is still hard to be in the hot-seat, reliving the events while at the same time being accused and grilled. It can be overwhelming, but practicing it makes it substantially less so. When you meet with attorneys and others to practice, the majority of your time should be spent, not talking about the testimony, but actively practicing it in a role-play fashion. The more you’re able to engage in the testimony in advance, the less emotional it will be when you testify for real.
Ultimately, jurors don’t expect or want testimony delivered from an emotionless drone. But even as they may appreciate your acknowledgment of a bad outcome, and even your human expressions of sadness over that, they do still want to see testimony that is clear, confident, and free from unwarranted self-blame.
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Other Posts on Witness Stress:
- Account for Physician Litigation Stress
- Witnesses, Don’t Create Obstacles to a Positive Perception
- Consider the ‘Message Effect’ of Inviting a Consultant to Help Your Witness
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Corwin, E. P., Cramer, R. J., Griffin, D. A., & Brodsky, S. L. (2012). Defendant remorse, need for affect, and juror sentencing decisions. Journal of the American Academy of Psychiatry and the Law Online, 40(1), 41-49.
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