Founder’s Note: There are a wide variety of reasons that witnesses may be afraid to testify. This blog post is about situations in which testifying will not put a witness in physical or significant or long-term emotional peril. Situations like those may require additional steps and even judicial intervention to manage appropriately. This post is not intended to suggest that all potential witnesses can or should be pushed to testify.
I was recently asked to do a brief presentation about trial preparation essentials. One of the first things to come to mind was the problem of the nervous witness. I have encountered this problem frequently in litigation, even when the facts of the case are not emotionally intense. The reality is that testifying in court or even a deposition can be nerve-wracking and create a lot of emotion. The good news is that mindfulness and compassion can help. Here are my 3 tips for using those strategies to help calm a nervous witness.
1. Watch Your Judgment
Let’s say you go to meet with an essential witness in a big case and they are visibly nervous. They may express concern about what they have done and show emotions like guilt, shame, or even defeat. Or perhaps they are just terrified about speaking in front of others. How do you react? Most likely, you may feel nervous too and worry about how this will affect your case and your ability to do your job. This is where you have to be really careful.
If there is anything that doesn’t help in a situation like this, it’s judgment. Sure, judgment is perhaps the most normal reaction in a situation like this. Even the best lawyers might react with a sigh and a “Really?” when they are dealing with stressful trial preparations and encounter a witness who is making their lives harder. But please resist the urge.
Judgment in this case may cause the witness to feel more shame and this could cause lead withdraw from the process, clam up, or even become hostile. As you work with the witness, remain calm and attempt as much as possible to show compassion for their situation. If you can do this, you can create open dialogue, potentially calm the witness down, and form the best plan for dealing with the testimony and the nerves.
2. Establish Trust
When people are scared, what do they often do first? They often look around to someone else for direction. If you have a witness who is scared and you have to call them to testify, you surely do not want them to look to opposing counsel for direction on cross-examination. This is why it is essential in prep to establish trust with the witness yourself.
Keeping in mind the warning against judgment just mentioned, be clear and honest with the witness about the process. Help them envision how the testimony and cross-examination will go, so they can process it before they take the stand. Help them understand their role in the case: just to testify accurately. Take responsibility for your part, which is the overall management of the case.
In short, use your skills of organization and empathy to create comfort and trust in the witness by answering questions and helping them process the experience.
3. Help the Witness Identify Their Own Purpose
Once the witness takes the stand, it’s all on them. There’s no way around this and that’s perhaps why testifying for many people is so scary. In most situations, objections won’t be an effective way for you as legal counsel to protect a witness. Thus, at a certain point the witness has to protect themself. They have to listen attentively, not allow someone else to put words in their mouth, and articulate their view of the facts.
This takes courage. What helps most people find courage in difficult circumstances? A purpose. In this way, as you go through steps 1 and 2, listen as much as you talk to understand what matters to the witness. If the witness is scared, there likely is something they care about that causes the fear.
If you can help the witness understand how their testimony relates to an important purpose, for the case or ideally for them, it may help them find stability in testifying. Be careful, however, in crafting this purpose that you don’t emphasize it so much that you put extra pressure on the witness. As in all things, balance is essential.
At the end of the day, nothing can make the task of testifying in a litigation matter easy. Being put on the spot to answer questions, including those that can be personal or feel invasive, is hard. With some awareness, thought, and compassion, however, attorneys can help witnesses care for those nerves and reclaim their agency which may help their cases in the process.
Want to learn more about mindfulness and compassion? Check out my new book, How to Be a Badass Lawyer, which is available now.
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