By Dr. Ken Broda Bahm:
In all the years I’ve been working with witnesses, I have yet to meet the perfect one. I’ve met some darned good ones, but everyone has a weakness. The question is whether they will let those weaknesses degrade their performance on the stand. Practically speaking, there are some weaknesses that can be minimized but never completely eliminated. After all, you cannot — and would not want to — change someone’s personality just to get better testimony. So, when dealing with a weakness that is not likely to be completely excised in a preparation session, and will instead accompany the witness onto the stand, the challenge is to reframe that weakness so that it, at least, does not threaten witness confidence. One such reframing is to focus on the silver lining — or the positive aspects of a negative trait.
Based on some new research, a focus on the silver lining isn’t just an optimistic wish, it is a self-persuasion strategy with real benefits. According to the study (Wesnousky, Oettingen & Gollwitzer, 2015), most of us are able to come up with silver linings in response to our own perceived personality weaknesses. And, what’s more, reminding ourselves of those benefits has a measurable effect in improving performance on related tasks. That finding has some clear implications for witnesses who often see testimony as a pretty negative experience. By drawing the witness’s attention to the silver lining, attorneys and consultants can help the witness feel better and do better at that challenging task.
The Research: The Silver Lining is Gold!
A doctoral candidate and two professors from the Department of Psychology, New York University teamed up to conduct a series of three studies on what they call the “lay theory” of a silver lining. The study, covered in ScienceDaily and Psyblog, looks at the effectiveness of the idea that negative characteristics are accompanied by offsetting positive qualities. In the first study, the team asked participants to identify one of their own negative personality traits, and then asked whether they thought that same trait could also be a positive. Happily, most were able to easily supply one or more silver linings: They were lazy, but patient; or overanalytical, yet thorough.
The second and third studies honed in on one possible silver lining that was frequently reported in study one: impulsive people also believed that they were creative as a result. So to follow up, the research team asked a new set of participants to take a personality scale on impulsivity. Half were randomly told the test showed them to be “impulsive,” and half were not. Then the group was further divided so half read a mock newspaper article showing a link between impulsivity and creativity, while another half read an article debunking that link. Finally, the participants completed a standard creativity task: thinking of as many uses as possible for a common item like a paper clip. The result: Those who were induced to see themselves as impulsive and informed that impulsivity carries the silver lining of creativity were significantly more creative in the final test. According to lead author Alexandra Wesnousky, “People know that a weakness can also be a strength, but these results show that if we actually believe it, we can use these beliefs to our advantage.”
Ten Witness Problems and Ten Silver Linings:
If most witnesses are going to be left, even after preparation, with one or more negative traits or beliefs, then it will help to reframe those beliefs by focusing on the silver lining for each. Naturally, I don’t mean to suggest that the silver lining fully compensates for the weakness, or to suggest that a witness should stop working on a problem and instead just celebrate the silver lining. Instead, the focus should be on doing the best you can on minimizing a weakness, and then boosting confidence by noting some level of benefit to the inevitable residual.
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Dark Clouds |
Silver Linings |
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1 |
I am nervous.
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Those nerves bring heightened attention and motivate you to do the work necessary. |
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2 |
I am soft-spoken. | Jurors will identify with you for that because they’re intimidated by the legal process too. |
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3 |
I feel terrible about what happened.
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Recognizing a bad outcome is natural. That shows that you are human and that you care. |
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4 |
I don’t remember everything. | That is realistic. What you do remember is more credible if you honestly admit what you don’t. |
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5 |
I am not quick in thinking of an answer. | A pause will show that you are thoughtful, and that you’re giving the question serious attention. |
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6 |
I have to concede some weak points. | That’s credible. If jurors will see the weakness anyway, they’ll think better of you for acknowledging it. |
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7 |
I get distracted and miss the point of the question. | You have a creative, busy mind. That will lead to better asnswers as long as you can focus. |
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8 |
I am detached from this lawsuit (I don’t see it as my problem). | That will help you not take things personally, avoid nervousness, and just do your job. |
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9 |
I feel self-righteous about our case (I don’t think the other side has a leg to stand on). | That means you are engaged, which will help you come up with better answers. |
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10 |
I can come off as arrogant. | That means you have confidence. You won’t be bullied by opposing counsel.
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In putting this list together, I had a thought that it could apply to case facts as well. Looking for a silver lining in case weaknesses might help as well, both in aiding confidence and in adding content. Another post, perhaps.
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Other Posts on Witness Challenges:
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Wesnousky, A. E., Oettingen, G., & Gollwitzer, P. M. (2014). Holding a Silver Lining Theory: When Negative Attributes Heighten Performance. Journal of Experimental Social Psychology.
Photo Credit: Taken on the Kerry Penninsula during the author’s trip to Ireland by Kelly O’Leary, the author’s sister.