By Dr. Ken Broda Bahm:
If you’ve been following the country’s current gun control debate, then you may know about the stormy encounter between CNN commentator Piers Morgan and radio host Alex Jones, including the red-faced and shouted charge from Jones, “1776 will commence again if you try to take our firearms.” All caps would not be sufficient to convey the tone here (watch it if you haven’t already), and saying that Jones qualifies as an angry witness is certainly an understatement. While that specific encounter could be viewed as a kind of theater, a version of the same phenomenon — anger taking the place of calm and effective communication — can play out in your deposition or in trial. While attorneys tend to focus a little more on good communication when it comes to trial testimony, the effects of anger can be more likely to play out in deposition, both because it is closer in time to the events prompting the litigation and because it seems like more of a private setting. But the harms of either a Jones-style outburst or Peirs’ own seething and silent response can be just as damaging in a deposition setting, if not more so.
Addressing anger in your witness is a task that calls for both an appreciation of psychology, as well as an awareness of the practical needs of good legal communication. The response is to address that anger through conscious and strategic preparation sessions. You won’t always be able to make the witness happy, but it is your responsibility to try to find ways to prevent your witness from harming the case. This post takes a look at some of the current advice and research focusing on witness anger, and proposes a three-step remediation model for defusing that anger.
An Angry Witness Is an Ineffective Witness
Viewed from the witness’ perspective, anger can often be an understandable reaction to the events themselves, and to the process and the atmosphere of conflict that surrounds litigation. But saying that “Its human” is not the same as saying that it is understandable or effective to your fact finders. In contrast, there are a few clear harms that occur when witnesses let their anger leak out during testimony:
- Anger breaks the identification that witnesses have with jurors and other fact finders. We know that jurors especially are likely to see similarity and common ground when they look at a witness, more than when they look at the lawyers or the parties themselves. The witness, especially the fact witness, is the vox populi that jurors trust. Anger, however, can be misinterpreted and perceived as defensiveness, bad character, dishonesty, or contempt for the entire process, including the jury’s role.
. - Anger gives the attorney ‘permission’ to be more aggressive. As I’ve written before, attorneys are expected to treat witnesses respectfully, and about the only time there is an exception to that is when witnesses themselves are the first to break that bond of respect. A display of arrogance or anger provides the attorney with a license to be a bit tougher in the examination and, in extreme cases, jurors and judges can find themselves rooting for the attorney to ‘win’ in the sense of bringing a witness under control.
. - Anger skews perception and reduces a witness’ focus. Probably the most insidious harm of anger is that it simply serves as a barrier between a witness and the kind of focus and attention needed in order to effectively process questions and contemplate responses. As psychologists have noted, anger and other forms of anxiety in witnesses “tend to impair perceptual efficiency by creating ‘blind’ spots, blurring impressions, and increasing the likelihood of blocks and distortions” (Lezak, 1993). In other words, anger leads to worse testimony.
These problems matter not just when testimony is presented live or video-recorded. Instead, they matter any time a record is being created and any time important perceptions are being formed. So that means anger matters anytime you aren’t in a private and privileged meeting.
Defuse the Anger, Improve the Witness
The particular strategies that work to fix this problem will naturally vary depending on the individual. And when I say ‘fix,’ that doesn’t necessarily mean getting rid of the anger. In some ways, human affect is a little like energy in the sense that it is neither created nor destroyed, but merely changed in form. In that context, approaches for dealing with anger can mean mitigating its effects and channeling those effects in better directions. Drawing from the field of Cognitive Behavioral Therapy (simply: How we think influences what we do), let me recommend a general three-step approach that can be applied during a witness preparation session with an angry witness.
Step One: Empathize. Before you start trying to change the behavior, you need to reach and communicate an understanding of where the witness is.
Externally, that means relating to the witness: “I can see how that makes you angry,” “I understand where you are coming from,” or “I can only imagine how I would feel.” As trial consultant Noelle Nelson has written, “More than anything, emotionally wrought people want just one thing: to be genuinely heard.”
Internally, that means understanding the witness: Where the anger comes from matters to what you do with that anger. I’ve written before that a critical step lies in diagnosing your difficult witness. Consultant Jan Mills Spaeth (click here for download) has suggested, try to identify the anger’s source: “Does the witness or client feel unjustly accused? Does he feel this case is a waste of time? Is lack of money causing stress? Are family members creating problems? Is a job or career being threatened? The trigger behind anger is usually a concern with a loss of some sort and it is essential to identify this loss.”
Step Two: Reframe. To move an angry witness in a different direction, you need to recognize that the ‘frame’ matters, and change the context in a few ways.
Task Redirection. Step back from whatever is causing this reaction. Take a moment to focus on another topic: Ask about background, or move to a foundational issue, or simply stop talking about the case all together. Keep this up until the anger has had a chance to dissipate, and then come back, carefully, to the topic that caused the reaction.
Audience Redirection. Shift the witness’ focus to an audience other than the opposing counsel or the adverse party that’s causing this reaction. “An angry witness can learn not to show their anger on the outside,” David Illig writes in The Jury Expert. “Teach them to imagine the jury is sitting right behind the interrogating attorney even if it means having them imagine the jurors are little people sitting on the shoulders and head of the interrogating attorney.” That is just as vital in deposition as well, since the most important audience for this testimony is a potential future jury. In that context, it is often helpful for the witness to remember that they are talking to that jury, and not to the attorney who is merely ‘hosting’ the questions.
Step Three: Desensitize. The bread and butter of behavioral therapy is desensitization, or the reliable effect of repeated exposure in reducing the level and the saliance of an emotional response. In a witness preparation context, that can mean a couple things.
Repetition. It may be tempting to do fewer meetings or to make the meetings shorter when dealing with an angry witness. You might think, “I can see how upsetting this is for you…so, let’s cut this short.” In actuality, as difficult as it is, you should be doing the opposite. To come to terms, an angry witness needs more exposure, not less. The first few times you move through the story — or maybe even the first dozen times — your witness will be angry. But over time, the topic can lose its punch and the witness can become calmer and more manageable.
Structure. While you can’t control opposing counsel’s structure in actual cross or deposition, you can control your own structure in preparation. Pick a structure that walks the witness up a staircase of gradually increasing anxiety. Think about how a behavioral psychologist would treat someone with a fear of heights. Stand at the bottom of a ladder. Now, wait until you’ve calmed down a bit. Now take one step up the ladder. Now, wait until you’ve calmed down a bit…and so on. You can do the same thing in your selection of practice question topics, based on your own sense of what riles the witness less and more.
The bottom line is that you don’t want an Alex Jones style witness, as it is arguable that the level of anger and the perceived absence of respect and control on Jones’ part has hurt the argument for gun rights. It can take a lot for a witness to learn to manage and channel that anger, and there certainly is no easy or automatic fix. But given the importance of a clear and calm message in litigation, it pays to try. Keeping in mind this three-step sequence — empathize, reframe, and desensitize — can be a good first step.
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Other Posts on Witness Preparation:
- Keep Your Witness Out of the Woodshed
- Don’t Mistake the Witness for a Bucket of Facts
- Turn in a Powerful Deposition, Doctor Defendant
- Diagnose Your Difficult Witness
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Photo Credit: iStock Photo (used under license)