Litigation Tips Archive

Are You Getting the Most You Can From Your Witnesses?

Many of our clients have indicated that they rarely use the services of jury experts to prepare witnesses for depositions or testifying at trial. Magnus Research Consultants believes this is a potentially dangerous practice because it has been our experience that litigators and trial attorneys often lack the insight into psychology required to fully prepare witnesses for testifying. In addition, attorneys who spend the considerable amount of time necessary to adequately prepare a witness for testifying will find that they have less time to spend on other matters. Over the years, Magnus has developed tried and true methods of preparing fact and expert witnesses in making the best possible impression on fact finders. Our methods are based on a thorough understanding of both social science research and the human dynamics of litigation.

Contact Magnus to get the most you can from your witnesses.

Make the Most of your Witnesses

A wise person once said, “you never get a second chance to make a good first impression”. Fact finder impressions of witnesses are often the key to the outcome of a case. Make sure your witnesses present a positive impression by retaining the experts at Magnus for witness evaluation and preparation. Techniques include:

  • mock direct and cross examination
  • critiques of witness presentations: appearance, language, demeanor, “attitude”
  • witness effectiveness training: individual, workshops
  • seminars on presentation styles/skills.

You cannot change the facts, but you can change how your witnesses present them. Call Magnus to discuss how we can help enhance the impressions your witnesses make in deposition and trial.

Your Client’s Credibility Can “Make or Break” The Case

Credibility is composed of expertise and trustworthiness. Expertise is knowledge about the matter at hand; trustworthiness relates to one’s motives and intentions. Witnesses who are credible in fact finders’ eyes have a marked advantage over witnesses who lack credibility. The client, as the key witness for your side, must demonstrate credibility in every facet of his or her testimony. If the jury or judge disbelieve any aspect of your client’s testimony, however minor in its effect on the legal aspects of your case, this disbelief may provide the basis for finding against your client. Regardless of whether you have tried the “perfect” case, your client’s credibility holds the key to your overall success.

Call the witness experts at Magnus to learn ways to maximize clients’ credibility.

The Five C’s of Witness Effectiveness

Enhancing a witness’ effectiveness is the goal of all witness preparation efforts. Regardless of whether your witness is an expert or a fact witness, the following five points for maximizing effectiveness apply:

  • Be credible. Be modest, be patient, and use humor appropriately.
  • Be correct. Be consistent with other witnesses on the same side.
  • Be clear. Avoid jargon, colloquialisms, and overstatement.
  • Be concise. Do not volunteer information or wander off the point.
  • Be candid. Be natural, sincere, honest, and graceful.

Call Magnus to learn how to maximize the effectiveness of your witnesses.

Deposition Readiness

A deposition is not the time or place to assess how a key witness will perform under pressure. Prior to allowing your witness to be deposed, assess how he or she is likely to perform. Ask several tough questions likely to be posed by opposing counsel, then critically evaluate your witness’ readiness to be deposed. Witnesses who perform poorly, who do not take constructive criticism well, or who, in any way, go on the defensive during the practice session are likely to make an unfavorable impression when deposed. Witnesses who are crucial to the outcome of the case are often in need of expert, professionally conducted witness preparation. Witness preparation can make the difference between a poor witness and a winning witness.

Call the witness experts at Magnus for information on winning with witnesses.

Witness Preparation: Why Not Do It Yourself?

Usually, witness preparation is done by the lead attorney on a case; sometimes it is done by an associate. On an increasing basis, however, witness preparation is performed by a litigation psychologist with expertise in human behavior. Why use a litigation psychologist instead of keeping witness preparation in house? There are several reasons why the use of a litigation psychologist to prepare an expert or a fact witness is warranted: potential or actual conflict between the attorney and witness; limited time and/or resources of the attorney to effectively prepare a witness; and, when the witness has special needs that are best handled by an expert in human behavior. A litigation psychologist can maximize the attorney’s time and resources, minimize or eliminate attorney-witness conflicts, and bring out the best in the witness with special needs.

When you have questions about witness preparation, call Magnus. We can help.

Professional Witness Preparation is Essential

Like most issues in litigation, the need for professional witness preparation is a judgment call. A simple case with an already competent and confident witness may require only basic review and explanation of the deposition or trial process; this is a task easily within a lawyer’s ability. On the other end of the scale are complex cases with one or more witnesses about whom the attorney has serious concerns. When the attorney has that uncomfortable gut feeling or hears the warning bells ringing about a witness, professional witness preparation is warranted. Witnesses too timid, arrogant, aggressive, or unlikable typically need more time and expertise than most attorneys have to give. And, there are occasions when the attorney-client relationship is such that the attorney would prefer someone else be responsible for tackling issues with the potential to antagonize, embarrass, or otherwise upset a witness. Finally, professional witness preparation can convince a reluctant client that he or she, and the case, are important enough to deserve this special attention. Many times you can go it alone, but when you cannot, or should not, we are there to help. Magnus offers a variety of creative approaches for all types of cases.

When you have questions or concerns about a witness, call Magnus.

Pre-deposition Witness Preparation

While professionally conducted witness preparation is the norm in most high exposure cases, it is less common for lay and expert witnesses to undergo witness preparation prior to their depositions. Often, the failure to adequately prepare witnesses for deposition testimony results in these witnesses testifying in a way that is detrimental to the case. Although there is frequently no dispute regarding a witness’ truthfulness, the manner in which the witness verbally recites and recalls facts, asserts an opinion, and, in general, conducts himself or herself during a deposition can be more important than the content of the testimony. A witness’ demeanor and manner of answering questions is more critical than ever when the deposition is videotaped. It has been Magnus’ experience that, all too often, deposition testimony is under valued for its overall contribution to the outcome of a case. Utilizing a professional who is an expert in preparing witnesses for effective testimony, for both deposition and trial, is of great benefit to trial counsel. The truism “it is not what you say, but how you say it” is a fundamental component of all witness preparation consultations offered by Magnus.

Contact Magnus for more information on how to make your witnesses more effective in all aspects of their testimony.

The Characteristics of a Good Witness

Most attorneys, regardless of the party they represent, know when a witness has made a favorable impression on a judge or jury. Furthermore, most jurors have the ability to distinguish between testimony that has achieved the desired outcome from testimony from testimony that is ineffective. These assessments of witnesses are, however, made with the benefit of hindsight and are often dependent on whether a witness was on the “winning” or losing” side of the case. It is inherently more difficult to evaluate the likelihood of a witness’ testimony in advance of his/her deposition or prior to strenuous cross examination.

There has been considerable social psychological research on the factors leading to people’s ability to persuade other people regarding a particular point of view. This research has, for decades, been applied to the understanding of witness effectiveness. Some jury consultants have devised checklists of essential traits of the “good witness,” including clever sounding names and descriptions. Although characteristics such as good communication skills, a positive appearance (for example, dressing for success), etc. are important, in the end, there is one characteristic that is an absolute requirement for witness effectiveness. This key characteristic is credibility. Credibility is comprised of equal parts of likability and trustworthiness. If either likability or trustworthiness is absent, the witness will have little or no credibility. For witnesses lacking likability and/or trustworthiness, Magnus Research Consultants is available to work with the witness (fact or expert) and his/her attorney to ensure the witness is as effective as possible.

Contact Magnus for more information on “winning with witnesses.”