By Dr. Ken Broda Bahm:
Every lawyer who has ever met with a witness to prepare that person for testimony has probably stressed the ability to be calm and focused while testifying. And after meeting with a great many future witnesses over the years, it’s possible to arrive at the feeling that some witnesses have that ability and some just don’t. But effective focus may be less a matter of natural ability and inclination and more a matter of a skill that can be learned. The skill is something called “mindfulness,” or the state of being in the moment, nonjudgmental, paying attention to present sensations thoughts and feelings. To be sure, some of our habits built up over a lifetime are likely to help or hurt in that regard. And some features of modern life, like continuous electronic connections, might be pushing us away from it. But like other facets of good testimony, mindfulness can be a matter of behavior, and behaviors can be learned.
A recent study (Lin et al., 2016) tested that principle and found that even a brief intervention had a significant effect on emotional control. As summarized in Psyblog, the study found that “Even those who are not mindful can benefit from meditation to help control their emotions.” The research team asked participants to view a series of upsetting images after meditating for the first time. A control group listened to a comparably paced and delivered TED talk instead, while those in the experimental group listened to a 20-minute audio of Dr. Steven Hickman of UC San Diego walking them through a session on meditation and mindfulness. After finishing the session and then viewing the images, those in the meditation group were more able to successfully rein in their emotional response, and this was confirmed not only through subjective assessment, but also through measurement of electrical activity in the brain. As lead author Yanli Lin explained, “Our findings not only demonstrate that meditation improves emotional health, but that people can acquire these benefits regardless of their ‘natural’ ability to be mindful. It just takes some practice.”
I have previously written about mindfulness as a strategy against bias for jurors and attorneys, and the mindset seems like it should help witnesses as well. The implication is not so much that witnesses should meditate, though that is not necessarily a bad idea, particularly for particularly stressed witnesses (the 20-minute audio used in the study is available online). But beyond meditation, the important finding is that situational stress is subject to conscious control and adaptation.
The idea that this perspective helps witnesses is buttressed by the reflections of expert witness, Edward Siedle, in Forbes. “Being an effective expert witness in a legal proceeding requires that an individual disregard social and conversational norms and instead focus upon mindful communication.” He continues, “the expert must maintain as much as possible a calm awareness of his body, feelings, and mind and seriously reflect upon every word heard and said. Anxiety and anger must be closely monitored due to their potential impact upon the testimony.”
I think this applies to fact witnesses as well, in some ways more so: Because fact witnesses are not outsiders, their involvement in the story is likely to come with an emotional component. We know those witnesses are used to receiving advice: Be calm, just focus on the question. But in the study, simple instructions to be mindful did not work, but the relaxation exercise did. So it is worthwhile for attorneys and consultants to think about exercises, even meditation or possibly some new apps that can also be used to reduce stress and increase focus.
There are a few common practical behaviors that can be stressed and practiced in your preparation sessions in order to help the witness become more mindful about testimony.
Reduce Distractions:
The beginning of the meditation audio focuses a fair amount on how you are sitting. I will often do the same for a witness, who not only has to be comfortable, but positive and alert as well. Finding a relaxed and poised way of sitting for my witnesses most often means sitting centered, leaning forward, arms on the table, one hand folded over the other, with feet flat on the floor. Sticking to that general resting position is one way of removing distractions. Other ways are to control what is in front of you, and of course, to do your best to still your racing thoughts and focus on one thing at a time.
Focus on the Question:
In the mediation exercise, the repeated instruction is to return to breathing as a kind of anchor for your thoughts. Remembering your breathing is useful in testimony too, but the anchor is going to be that question: Focus first on just listening, not yet thinking of the answer, but just on understanding what is being asked and remembering that the question frames the sum total of your responsibility at the moment. As Siedle explains about his own expert testimony, “In normal, everyday conversation we often don’t pause to clearly establish what another person is saying. Often our responses are driven by our own communication desires, as opposed to what is being asked of us. The better we listen and reflect, the more likely we will be responsive to others.”
Monitor Emotions
Instead of denying emotional responses or attempting to just tamp them down, the better course is to be aware of yourself, sparing some attention to the internal question, “How am I feeling?” As Siedel advises, “Be mindful how you are feeling minute-by-minute as you respond to others. Are you feeling angry, defensive or anxious? Or are you “full of yourself” exuberantly soaring? Both fearful and fanciful emotions can cloud communications.”
Find the Impartial
Another repeated piece of advice from the mindfulness exercise is to avoid judging or evaluating, and just experience. There is parallel for a witness here as well. Of course, the witness really is partial, often either being a party or being aligned with a party in the litigation. At the same time, there either is or should be a level of neutrality that can be achieved. Stylistically, that means staying calm and informative, not sounding like an advocate or coming too close to the attorneys’ style. Substantively, that means keeping your focus not just on what helps your case, but on what is clear and what is useful to the fact finders.
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Other Posts on Emotional Control:
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Lin, Y., Fisher, M. E., Roberts, S. M., & Moser, J. S. (2016). Deconstructing the Emotion Regulatory Properties of Mindfulness: An Electrophysiological Investigation. Frontiers in Human Neuroscience, 10.
Photo credit: 123rf.com, used under license