By Dr. Ken Broda Bahm:
Justin Bieber, the Canadian tween-idol, is now in the career phase of trying to kill his early Disney-fied image by becoming a bad and dangerous character (see also Miley Cyrus). In a U.S. civil case involving alleged physical assault committed by Bieber’s bodyguards, he recently had his deposition taken. Now, there are many great clips on the web with some memorable examples of what not to do in a deposition, but the Bieber clips are truly awful. Some recently hosted by the site TMZ show nearly every species of problem. He feigns ignorance, avoids obvious answers, displays an intense disinterest in what the attorney is trying to ask, projects an arrogant “I’m above this” attitude, and even for a moment seems to threaten the questioning attorney. What unites all of these bad examples is a palpable contempt for the process.
It is the kind of deposition that guarantees that, at some point down the road, there will be a generous settlement offered to those bringing the suit. But the deposition also serves as a useful reminder for witnesses and those who prepare them. Few (hopefully) will show as much contempt as Bieber, but everyone who is an unwilling participant in the legal process needs to guard against the display of contempt during deposition. This post will look at some surprising research about the notion of contempt and share some advice on how to avoid it when testifying.
Contempt: The Fourth Horseman of the Relationship Apocalypse
Dr. John Gottman is a University of Washington psychologist who spent 40 years studying what makes relationships, particularly marriages, go smoothly. He conducted a number of clinical investigations — called the “fight lab” — which involved video-recording couples talking to each other. Based on an analysis of those conversations, Dr. Gottman was able to predict at a very high level (80 to 90 percent in most studies) which couples would go on to divorce down the road.
Four key factors are predictive in making this determination: defensiveness, stonewalling, and emotional withdrawal all help to build an impossible climate for conflict resolution. But the fourth factor, contempt, turned out to be the number one predictor. Described by the Gottman Institute’s blog, contempt in a relationship means trouble: “When we communicate in this state, we are truly mean. Treating others with disrespect and mocking them with sarcasm are forms of contempt. So are hostile humor, name-calling, mimicking, and/or body language such as eye-rolling and sneering. In whatever form, contempt is poisonous to a relationship because it conveys disgust. It’s virtually impossible to resolve a problem when your partner is getting the message that you’re disgusted with him or her.”
While the research focuses on long-term relationships, marriages, and divorces, it is not too much of a stretch to say that the same dynamic can apply to all relationships, including the shorter-term relationships between a speaker and an audience, or between a witness and a fact finder. When a witness shows contempt in their testimony, that is easily read as a contempt for the whole process, including the judge’s or jury’s role in that process. And one will never be credible to the objects of one’s contempt.
Lawsuits Create Understandable Targets for Contempt
Any involvement in a lawsuit, particularly when you’re the target of that suit, can be a frustrating experience. Yesterday, for example, I presented to a large group of nonlawyers, all of whom are presently named in a lawsuit. They shared the common feelings of powerlessness, anger, and frustration. That stew of psychological stressors can risk boiling over at various points in the litigation process. In trial itself, the formality of the setting, as well as the physical presence of judge and jury, can (and should) tamp down any outward displays of contempt. But in a deposition, it is a little easier to forget about that audience and let your true feelings show.
In that deceptively private setting of a deposition, there are several triggers that can elicit these moments of open contempt:
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- The opposing party: They’ve betrayed my trust in order to initiate a frivolous suit.
- The opposing counsel: Their job is to twist the truth in order to make more money.
- Your own counsel: They don’t understand the pressure I’m under and just want to control my testimony.
- The court: Why can’t they give clear guidance and firm dates?
- The whole process: This is just a game played for money and I never signed up to be part of it.
But Witnesses Must Not Let It Show in Testimony
Letting some attitude slip into a deposition might feel psychologically satisfying, but it never helps your case. In the long term, that satisfaction can come at a high price. When working with a witness, one approach might be to simply show the clips discussed above and stress, “Don’t be Bieber!” But I’ve also found that three other strategies can help witnesses keep any feelings of contempt in check.
Remember Your True Audience
In a deposition, you’re not talking to opposing counsel, and you’re not talking to your own lawyer, or the court reporter or videographer. Ultimately, you’re not talking to anyone who is actually in the room. Instead, the most relevant and most important audience is the jury, judge, or mediator who might someday see and react to this testimony. Of course, that remote audience is a neutral. They have no ax to grind, and as far as they’re concerned, neither should you. A jury in particular will feel, just as many witnesses, that they’ve been drug into this process against their will. There is no reason to be mad at them, so there is no reason to send any contempt their way.
Have a Sounding Board
People, even those with communication training, can be notoriously bad judges of their own nonverbal behavior. We might feel that we’re being calm and matter-of-fact, when we’re actually projecting arrogance, aloofness, or disdain. To learn how you’re really coming across, it helps to get some feedback. Use your own attorney, their colleagues, or a consultant as a reference point and a mirror. Witnesses can also create their own feedback by having the preparation session video-recorded and watching it. As uncomfortable as it can be to see oneself on video, the exercise can yield a great deal of conscious and unconscious self-correction.
Adopt the Mindset of the “Patient Explainer”
Witnesses bring a mindset to their testimony and a defendant’s choice of mindset matters. Rather than “the put-upon,” or “the accused,” I think the best mindset is “the patient explainer.” In demeanor and tone, the witness should see themselves, not as challenging an adversary, but as explaining patiently, filling in the complete picture, and never rising to the bait of misunderstanding, repeated question, or intended insult. Focusing on the neutral fact finder — either the jury in the room during trial or the potential jury who might one day view or hear segments of a deposition — the goal is just to get to a place of clarity and understanding. Keeping that audience and goal in mind can be a good way for witnesses to remind themselves that any true feelings of contempt for parties, counsel, or the process as a whole are best shared with your own lawyer and not brought into testimony.
Ultimately, witnesses need a credible relationship with fact finders, and displayed contempt, even when displayed at a level much lower than Bieber’s, destroys that relationship. It is telling that the worst thing one can do before a trial judge isn’t called “disrespect of court,” or “disobedience of court,” but “contempt of court.”
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Other Posts on Effective Testimony:
- Stage Fright in Court? Don’t Calm Down, Psych Up
- Don’t Worry About the Jury’s Eye Contact (Worry About Your Own)
- Tune Your Witness’s Tone of Voice
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Carrere, S., Buehlman, K. T., Gottman, J. M., Coan, J. A., & Ruckstuhl, L. (2000). Predicting marital stability and divorce in newlywed couples. Journal of Family Psychology, 14(1), 42. doi: 10.1037/0893-3200.14.1.42
Photo Credit: 123rf, Used under license.