The Trial Lawyer-Journal of Strategy, Technique & Case Management,
The Trial Lawyer, Volume 21, 309-320 (1998)
Melissa Pigott, Ph.D.
Pompano Beach, FL
Harris Friedman, Ph.D.
Fort Myers, FL
Melissa A. Pigott is the Director of Research at Magnus Research Consultants, Inc. She consults with attorneys on all types of trial and jury research.
Harris Friedman is a clinical psychologist who maintains a private practice and consults in the forensic arena.
Enhancing Fact Witness Effectiveness
The primary role of a courtroom witness, fact or expert, is to inform the decision maker(s), most often a jury, 1 about facts of which the witness has knowledge greater than the jury. The goal of all witness testimony is, of course, to persuade the jury to view the case in one way, to the exclusion of alternative ways, of viewing the case. In this regard, all witnesses utilize, implicitly or explicitly, a communication strategy in an attempt to be effective persuaders to their point of view. However, most often these strategies are used by witnesses with little explicit attention paid to how their behavior influences their effectiveness, that is, the acceptance or rejection of their testimony.
Much is known about factors which can be explicitly utilized to enhance witness effectiveness. For example, there has been considerable literature written about social psychological factors which enhance persuasion in general. Furthermore, there is some literature addressing specific factors which enhance the effectiveness of expert witnesses. Relatively little attention has been focused, however, on factors which enhance fact witness effectiveness.
This article is based on several premises. First, it is based on the premise that the basic social psychological factors which affect persuasion in general can be applied in a strategic fashion to enhance both fact and expert witness effectiveness. Second, although though there are important similarities in how factors in persuasion apply to the enhancement of the effectiveness of both fact and expert witnesses, there are also important differences that must be taken into account in their application to fact witnesses as contrasted with expert witnesses. Finally, this article is based on the premise that the adequate preparation of fact witnesses to enhance their effectiveness is an important aspect of legal practice which is often deficiently provided and, consequently, deserves remedying.
The origin of this article is derived from the authors̓ direct experiences as consultants on a wide variety of lawsuits, civil and criminal, in which witness testimony, both expert and fact, played a key role in the outcome of the case. We will begin by briefly reviewing the social psychological literature on persuasion in general, as well as specific studies in the legal arena with a focus on applications for expert witnesses. We will then apply these principles to enhancing the effectiveness of fact witnesses, followed by the brief presentation of two illustrative cases demonstrating preparation of key fact witnesses for trial. The final section of the paper will provide guidelines for attorneys desiring to maximize fact witness effectiveness.
Persuasive Communication Fundamentals
Persuasive communication has been a widely studied area of social psychology for almost 50 years. Three fundamental factors have consistently been found to be important in attitude change: source (communicator) characteristics, message characteristics, and audience characteristics. Source characteristics relevant to enhancing witness credibility refer to how the witness is perceived as an individual, for example, as credible or not. Message characteristics refer to the content of the message itself, for example, whether a conclusion is drawn after a statement or whether the audience is left to draw their own conclusion. Audience characteristics refer to the traits of the decision makers, for example, the levels of intelligence and initial attitude of the judge or jury.
Source characteristics are the primary focus of the present discussion of communication fundamentals because they are most applicable to an understanding of witness effectiveness. There are four types of source characteristics in persuasive communication, each of which combines with the others to influence the persuasive effectiveness of the communicator. These are credibility, likability, attractiveness, and power.
Credibility is the most fundamental communicator characteristic. Credibility is composed of expertise and trustworthiness.2 Expertise is the knowledge of the communicator about the subject on which he/she is speaking; trustworthiness is related to the motives or intentions of the communicator. Communicators who have both expertise and trustworthiness, that is, who are perceived as having little to gain from stating facts or opinions, are most credible, or believable, to the audience.
The second key communicator characteristic is likability. It is widely accepted among social psychologists that liking is a key component of attitude change.3 That is, people are far more willing to believe what someone has to say if they like that person. This is especially important if a speaker is supporting an unpopular position. In general, people like those who are most similar to themselves.4 The most persuasive communicators are similar to their audience, because similarity leads to liking and liking leads to persuasion. (Therefore, it should be noted that this source characteristic also can be viewed as dependent on audience characteristics.)
Closely related to likability is attractiveness. Generally speaking, attractive people are better liked than unattractive people.5 In addition, there is an attractiveness stereotype in which physical attractiveness is associated with other positive traits (“what is beautiful is good”). Attractive communicators are, thus, more effective in persuading their audience to see things their way.
The last communicator characteristic, power, has received considerable scientific scrutiny in its own right. Social power is one of the most important aspects of social influence, the process by which attitude change occurs. Power is defined as the ability to change other people̓s actions.6 There are six bases of social power: reward, coercive, referent, informational, legitimate, and expert. Each of these power bases are present to some degree in all communicators. Reward power and coercive power, although important in many contexts, will be excluded from further mention because of their limited applicability in courtroom situations. Thus, referent, informational, legitimate, and expert power bases are present in expert witnesses, while fact witnesses’ credibility is based only on referent and informational power.
Referent power is power achieved from being liked or admired. The jury will be motivated to change their attitude in the direction proposed by the witness to the extent that they desire to be similar to the witness, or to view the witness as a role model. Informational power stems from possessing information others do not have. This does not require that the information be expert information. If possession of the information is desirable to the jury, any witness will command a certain level of power.
In addition to referent and informational power, expert witnesses can rely on legitimate and expert power. Legitimate power is the power of being in a high status role. Authority figures, such as judges, have legitimate power. Expert witnesses who are high status (for example, a police chief) will also be able to capitalize on their legitimate power over the jury. Expert power, the last power base, is achieved from having knowledge other people do not typically possess, such as professional knowledge. The fact that expert witnesses, unlike other witnesses, can give opinions and answer hypothetical questions is due to the Court̓s recognition of their expert power.7
Witness testimony that capitalizes on many power bases is likely to produce greater attitude change among the audience than testimony capitalizing on fewer power bases . When expert opinions differ, jurors intuitively weigh the power of each person to help determine who is the most believable witness. Likewise, a witness who ranks high on many or all of these source characteristics will most likely have an advantage in being effective in his/her testimony.
Finally, it should be noted that in some cases, even for expert witnesses, what is generally considered to be an asset may actually be detrimental in a specific application. For example, a high status expert witness may find status to be a detriment if the audience is a low status group holding animosity related to the status differential between them and the witness. Therefore, any generalizations from communication fundamentals should be viewed in light of the unique circumstances of their application.
Language Usage and Communications Styles
In addition to research on source characteristics in persuasive communication, there are a number of studies of language usage and communication styles which have direct applicability to the way in which witnesses are perceived in the legal arena. Surprisingly, there are few empirical studies on the direct impact of expert testimony on jurors̓ decisions. Furthermore, there are none known to us pertaining to fact witnesses. It is possible, however, to extrapolate from general principles as well as from knowledge of expert witness effectiveness to draw important conclusions regarding fact witnesses. In this regard, it should be noted that, while “the primary agent of attitude change is the attorney”8 (p. 1914), it is through the witness, whether fact or expert, that the attorney must introduce evidence in an attempt to persuade the jury.
Some studies have focused on examining trial testimony in an attempt to measure witness credibility. One such study found that experts̓ credibility increased with the use of passive voice.9 Passive voice emphasizes objectivity over personal opinion. For example, a statement prefaced by “it has been shown by research” is in passive voice, whereas “I believe…” is an active voice statement. Language choice has been shown to be the primary means of conveying message strength.10 It is widely believed that language which is precise, assertive, and clear leads to greater attitude change than imprecise, unassertive, and unclear language, thus, the finding that passive voice increased expert credibility is of particular interest. It is, once again, important to note that what has been demonstrated to be effective for an expert witness in this regard may not apply to a fact witness. That is, a fact witness who speaks in passive voice may be seen as indecisive rather than objective.
In addition, persuasion has been found to generally be enhanced by the intensity of a message, but only for a credible source.11 In other words, jurors must understand the message and perceive that the witness believes in the opinion he/she has expressed for the testimony to be effective. This principle applies to both fact and expert witnesses.
Jurors, like almost everyone else, like stories. As a result, witnesses who employ a narrative, story telling style have been found to be perceived as more credible than other witnesses.12 The witness utilizing this strategy is faced with a challenge – he/she must carry on conversations with two audiences simultaneously. In order to be effective with the story telling strategy, the witness must converse with the attorney who is asking the questions while, simultaneously, in order to be perceived favorably, the witness must tell his/her story which answers the questions in a manner likely to be understood by the jury. Expert and fact witnesses alike are well advised to employ the story strategy in their testimony.
The effective witness, expert or fact, also may benefit through “connecting” with the individual jurors on a regular basis in a personal way. Witnesses who have this ability often employ the strategies of immediacy. Immediacy behaviors include communicating at a close distance, smiling, and maintaining eye contact with one̓s audience.13 Immediacy has been found to lead to greater processing of positive thoughts and less processing of negative thoughts, thereby enhancing perceptions of the witness̓ likability, competence, trustworthiness, and similarity.14
Some researchers have studied social power as it is manifested in speech. In general, people of high power use short, direct statements. They do not use intensifiers (for example, “very”, “surely”), hedges (“sort of”, “kind of”, “like”), polite forms of speech (“yes sir”), or hesitations (“uh”, “um”).15 Powerless speech is speech which in any way deviates from standard dialect or which adds more verbiage than necessary.16 Although the use of power and influence is usually associated with masculinity,17 the gender of the person who seeks to influence others has been shown to be less important than perceived power.18 Females who adopt strategies associated with powerful speech are generally perceived favorably.19
The use of direct statements is oppositional to the use of the passive voice, or indirect way of making a statement. This is an illustration of how one principle can work in opposition to another, that is, passive voice increases the perception of objectivity, hence increasing credibility, but decreases perception of power, hence decreasing credibility. Because fact witnesses are not expected to have the same degree of objectivity as experts, particularly if it is their own case for which they are witnessing, it is concluded that direct statements are likely to be more effective in their testimonies.
An important key to a favorable perception among jurors is for the witness to be viewed as honest. It must be emphasized that honesty and accuracy in testifying are crucial in producing a witness with high credibility among jurors.20 Honesty is also important as a factor in expert witness credibility such that a witness with great expertise who is perceived as biased will have a more negative impact on a jury than a witness without expertise.21 One of the primary sources of bias in witness testimony is caused by the attorney̓s attempts, either directly or indirectly, to influence the substance of witness testimony. While all expert witnesses are potentially subject to undue influence of the lawyers who hire them, the effective expert is one who goes to great lengths to retain his/her objectivity.22 Lawyers will often test the limits to which the expert will go, and it is the expert who must set those limits.23 Experts must often take strong measures to avoid overgeneralizations and broad interpretations of the facts. Likewise, being perceived as honest is crucial for fact witnesses. A summary of the factors related to witness effectiveness is presented in Table 1.
Issues Related to Expert Witnesses
The following discussion provides a basic background about expert witnesses from which distinctions between expert and fact witnesses can be compared and contrasted. The legal basis for allowing expert witnesses to testify is Rule 702 of the Federal Rules of Evidence.24 The standard for evaluating the admissibility of expert testimony in most states is Daubert.25 The Daubert standard replaced 70 years of reliance on the Frye standard for evaluating expert testimony. Daubert has three tests with which expert testimony is scrutinized by the courts: reliability, relevance, and the legal sufficiency of testimony.26 Expert testimony, while increasingly prevalent in court, is increasingly controversial. Some people believe all scientific evidence is inappropriate for the courtroom because experts with the most extreme views are favored, the adversarial system promotes “battles of the experts”, and professional differences are emphasized at the expense of scientific consensus.27
Regarding the first concern, that extreme views are favored over moderate views, “the law expects experts to be unbiased educators and not advocates”28 (p.298). While it is acceptable, and even expected, that attorneys should be passionate advocates for their side, the role of the expert is to keep the advocates honest by educating the jury regarding the truth. The roles of advocate and educator often conflict, but the witness must keep in mind that the Court requires experts to be impartial in their assistance to fact finders.29 Three models of experts have been proposed: objective, adversarial, and hired gun.30 The adversarial expert and the hired gun (defined as extreme advocacy) are viewed by most experts (nonattorneys) as unethical in their attempts to influence the jury. The adversarial expert may, however, be preferred among attorneys because he/she typically testifies only in cases in which a strong opinion (one similar to the attorney̓s opinion) is held.31 Only the expert can decide the extent to which he/she will testify and whether to include all known information, information that meets professional standards of accuracy, or information that supports the position of the attorney who has retained him/her.32
Expert witnesses who are scientists face particularly difficult ethical dilemmas due to the inherent conflict between the goals of attorneys and scientists.33 The conflict arises from the adversarial nature of the legal system and the nonadversarial nature of science. Often, attorneys choose experts who can persuade as opposed to experts who are the best scientists. Even when the rules of science dictate tentativeness, attorneys demand definitive conclusions.34 The ethics codes of scientists appear to be the best safeguard against undue influence by attorneys.
Many experts, scientists and nonscientists alike, face a choice between being willing to say enough to be retained to testify and being reluctant to state strong opinions in an attempt to remain objective. The expert must engage in four activities in fulfilling his/her duty to the attorney.35: (1) investigation – research on the substantive issues on which the testimony will be based; (2) evaluation-determination of whether an opinion can be given on the merits of the case; (3) recommendation-development of appropriate trial strategy with the attorney; and (4) testifying. None of these expert witness roles involves advocacy, which should remain the domain of the attorney. Common signs of advocacy, to be avoided by the ethical expert are: (1) exclusively testifying for one side; (2) stating that he/she cannot be wrong; (3) refusing to describe methodologies used to develop testimony; (4) refusing to bring to court data and other documents supportive of testimony; and (5) attacking the credibility of opposing witnesses.36 Attorneys who are in the position to retain experts should be wary of these warning signs. In addition, the expert and attorney have much to learn about experts resisting advocacy through careful attention to attacks by opposing counsel.
Two studies have summarized the results of surveys on attorneys̓ opinions of the ethics and effectiveness of experts.37 One study found the most desirable traits of experts, as perceived by litigators, to be certifications and experience in testifying.38 The other study revealed that the best experts are “understated and conservative”39 (p. 58). Attorneys in the latter survey cautioned experts to avoid all defensiveness and to never overstate evidence. Interestingly, the most common errors in witnesses̓ testimony were believed by the attorneys to be due to the attorney̓s failure to adequately prepare the witness. At a minimum, an effective expert must have a basic understanding of court proceedings. He or she must be able to withstand pointed attacks on credibility while remaining poised, confident, and most importantly, professional.40 Experts̓ only allegiance should be to the truth.
The most common types of experts, according to a large scale survey of litigators,41 are economists. Following economists in frequency of use are medical experts, actuaries, and accountants. The most common basis for selecting an expert was reported to be the attorney̓s prior satisfaction with the expert. A review of 11 studies providing practical tips to various types of experts yielded common themes across professions.42 These themes are summarized in Table 2. As the reader will note, while the professions yielding experts have little in common on the surface, the commonalities increase when each professional is faced with the daunting task of testifying. One pair of writers 43 likened testifying to defending a doctoral dissertation, a prospect only the hardiest professional would even begin to consider! Overall, the role of the expert witness is a challenge to be accepted only after careful consideration of all the costs and benefits.
Issues Relating to Fact Witnesses
As previously mentioned, there has been relatively little research or professional writing directed toward the preparation of fact witnesses. It is, therefore, considered important to examine the similarities between factors enhancing the effectiveness of experts and factors enhancing the effectiveness of fact witnesses. It is considered equally important, however, to consider that in some circumstances the very criteria that would enhance the jury’s acceptance of an expert̓s testimony could impede their acceptance of a fact witness. For example, a murder defendant with source characteristics which would be highly favorable for an expert could find that these very characteristics inspire a negative reactance, rather than acceptance, toward his/her testimony.
The basic social psychological principles governing credibility apply to all witnesses, expert and fact, but there are salient differences for the two types of witnesses. Therefore, some relevant differences between factors enhancing the effectiveness of expert and fact witnesses will also be examined. First, an effective expert witness should always be more of an objective educator than an advocate, whereas a fact witness is often expected to be an advocate, particularly if he/she is witnessing on his/her own behalf. Second, because fact witnesses are not expected to derive their credibility from their expertness, if they are perceived as too polished or prepared, this can be counterproductive to their credibility. Third, expert witnesses are most likely individuals relatively free from major psychological distress, not withstanding the fact that testifying is often stressful to experts, whereas fact witnesses may be experiencing extreme psychological discomfort due to their direct involvement in the trial. Fourth, the expert witness may have a professional stake in how they perform in terms of their livelihood or status, but seldom do they have a personal stake in the outcome of the case. Fact witnesses, on the other hand, can often have extremely high stakes resting on the outcome of their performance as a witness, including the ultimate stake, their lives. In addition, fact witnesses are often in difficult circumstances which sometimes derive, at least in part, from their underlying psychological difficulties. These circumstances almost always place a fact witness who has a significant stake in the outcome under extreme psychological stress. The stress of litigation can therefore, become so extreme that an otherwise psychologically healthy individual can become very emotionally unstable.
Consequently, even though the application of basic social psychological principles applicable to expert witness testimony also applies to fact witnesses, they apply differently. Specifically, there has to be a more relativistic application of these principles in enhancing the credibility of fact witnesses based on the unique set of constraints which define the purpose of the testimony. This includes a sensitivity to underlying psychological issues of fact witnesses which may overtly interfere with their performance.
Examples of Enhancing the Effectiveness of Fact Witnesses
From the foundation of knowledge provided by the previous discussion, the following section demonstrates two specific examples of applying this knowledge to actual cases in which we were retained to enhance the effectiveness of witnesses after the witness was perceived negatively during mock jury research. One case has been chosen from the civil and one from the criminal arena, respectively, to give a balanced presentation. In discussing these cases, we have endeavored to conceal the identities of the witnesses through changing specific details which would violate client confidentiality, while preserving the major dynamic factors involved in enhancing the effectiveness of these fact witnesses.
The Case of the Overly Honest Consultant
The first case involved a multi-million dollar claim against a consulting firm for allegedly having made technical errors resulting in considerable damages to their client. The president of the firm, whom we will call Mr. Smith, was the key fact witness in defense of the firm due to his role in the company and his direct involvement in the project. The attorney representing the firm knew that the testimony of Mr. Smith would be crucial to the outcome of the case. The attorney also believed that Mr. Smith would present himself poorly to potential jurors and for this reason, subjected him to a vigorous cross examination in front of two groups of mock jurors. As expected, mock jurors reacted negatively to Mr. Smith, faulting him primarily for trying to tell his “life story” while avoiding giving direct answers to the attorney’s questions. Mock jurors perceived Mr. Smith as having something to hide. In addition to a potentially negative reaction among jurors, Mr. Smith’s attorney had become so frustrated with Mr. Smith that they had developed considerable friction in working with each other as the trial loomed closer.
Mr. Smith was a distinguished looking man who appeared both dignified and highly intelligent. However, when discussing the case during an initial interview, he immediately expressed both sorrow and considerable guilt over being subject to the allegations of professional negligence. He had been born to a poor family but had excelled educationally and was a deeply religious man. After graduating from professional school, he built a large company based on not only his talent, but also his integrity. He was a man with strong values of right and wrong, and very humble and self-effacing. He expressed great concern that the firm he had built could be put out of business due to his actions, hurting his many loyal employees, and he was adamant that some mistakes might have been made. When pressed, he denied primary culpability for the problems that had ensued with the project, but he seemed to have difficulty in separating out the fact that less than perfect performance does not constitute negligence. Furthermore, he consistently sabotaged his denials of wrong doing with incessant voluntary admissions of short comings in his work and the work of his firm. In addition to adding these disqualifying statements to his denial of culpability, more damaging were his vocal intonations and body language; both clearly expressed his belief that he was negligent.
The initial interview was followed by interviewing Mr. Smith with his attorney present. As soon as Mr. Smith repeated the same process of sabotaging his credibility through his voluntary admissions of short comings and his nonverbal expressions of guilt, his attorney became noticeably upset. The attorney attempted to coach Mr. Smith, but to no avail. Mr. Smith protested in a passive way that he could only tell the whole truth in this fashion and that how he expressed himself constituted, for him, the issue of his integrity which he would not compromise. The destructiveness of the impasse between the two of them became highly evident.
Thus, this case was in severe jeopardy in two regards. Mr. Smith presented his testimony in a way that no jury was likely to hear him as he needed to be heard. Furthermore, because he and his attorney were no longer capable of cooperating as a team on this issue, there was little likelihood of Mr. Smith changing his presentation style without outside intervention.
A two part intervention was presented to Mr. Smith and his attorney. The first part focused on the style of communication that Mr. Smith utilized, as well as on the underlying reasons for Mr. Smith being so guilt ridden. The goal of this part of the intervention was to help him recognize that both the content of his voluntary admissions of possible wrong doing as well as his nonverbal expression of guilt constituted self-sabotage, not integrity, and then teach him to change his expression in a way that was both congruent with his self image and effective in persuading the jury to return a verdict of no negligence.
The second part of the intervention focused on the conflict between Mr. Smith and his attorney. Clearly, these two individuals, although they had formed a strong friendship, saw the world in very different ways and were failing to communicate. In fact, when the attorney was trying to help Mr. Smith, he was really polarizing Mr. Smith into his self-defeating position. Consequently, the goal of this part of the intervention was to heal the rift between the two so that they could constitute an effective team.
The first part of intervention was conducted with Mr. Smith without his attorney present. The issue of integrity was explored with Mr. Smith and some childhood experiences were discussed for their role in his development of a need to be perfect and his resulting guilt when perfection was not attained. Furthermore, it became apparent that Mr. Smith deeply believed it was wrong to get angry. Focus was directed toward teaching Mr. Smith that getting angry is not necessarily wrong, but an adaptive response that may vary in terms of its functionality depending upon the situation. It was pointed out to him that, even though he and his life’s work were being unfairly attacked, he could only blame himself for minor omissions. When Mr. Smith was finally able to understand why he was caught in his self-defeating stance, he was able to agree to learn how to make the necessary changes, including suppression of any expressions of guilt and demonstrating appropriate anger toward unfair accusations.
At this point, Mr. Smith and his attorney were brought together in order to rebuild their team. With both present, Mr. Smith was able to explain to his attorney a deeper understanding of his former reticence to change his mode of expression and how this had been resolved. With this revealed, he and his attorney were able to reconcile and focus on how Mr. Smith behaviorally needed to change in order to become an effective spokesperson for the defense.
The attorney cooperated in this process by conducting extensive mock direct examination and cross examination with Mr. Smith. Feedback was provided to Mr. Smith along the way. Comments included focusing on nonverbal expressions such as how his voice would vacillate in pitch or how he would avert his eyes, as well as on the content of what he expressed. He was offered concrete advice and his testimony was rehearsed and re-rehearsed. When Mr. Smith became caught in expressions of guilt, the process was stopped and the issue of guilt was addressed. He also was encouraged to express appropriate anger which he did manage, but with some difficulty. He was taught to recognize when guilt was intruding on his testifying and to use a behavioral cue to gain control over his guilt by substituting anger for guilt. His attorney began to learn from the process and was also able to cue him in more productive ways. Finally, his presentation began to shape up to an acceptable level. The end result was that the case was won with the positive testimony of Mr. Smith being one of the most important reasons cited by his attorney for the victory.
The Case of the Pessimistic Young Murder Defendant
A nineteen year old man from a middle-class background, whom we will call Mr. Jones, was standing trial for first degree murder in a case in which two of his older friends killed a rival suitor who had been harassing one of the other men’s girlfriend. This event occurred when Mr. Jones was a minor and he claimed to not have directly participated in the brutal slaying or to even know it was planned. The older friends had testified against him in order to get a lesser sentence. The attorney decided that it was crucial for Mr. Jones to serve as a witness in his own defense. After conducting mock jury research in which jurors viewed a statement given by Mr. Jones on videotape, along with other evidence, before convicting him of first degree murder on the first vote during deliberations, his attorney thought it wise to subject Mr. Jones to witness evaluation and preparation.
Upon first meeting, Mr. Jones slumped in his chair, avoided eye contact, spoke in a barely audible fashion, occasionally stammered his words, gave terse answers to questions, and appeared to not care about anything, expressing a combination of low self-esteem and pessimism that his future was ruined regardless of how his case would be resolved. It was readily obvious that Mr. Jones felt he had no chance of being found innocent or convicted on a lesser charge. Furthermore, he did not believe that, even with a light sentence, he would have any quality of life. He truly had no confidence or hope for the future and this translated into a negativistic message to a potential jury that eroded his credibility.
The intervention plan for preparing this young man for testifying first included bolstering his self-esteem and giving him some sense that life could offer him some rewards in the future if he did well in presenting himself. This was then followed by behavioral coaching to help him correct the negative messages he was exuding. The first part of the witness preparation involved a combination of supportive psychotherapy combined with vocational counseling. It was demonstrated to Mr. Jones that there were viable options for him to rehabilitate himself. If he did well in testifying, he would most likely be convicted on a lesser charge than first degree murder, and would receive a short prison sentence. Surprisingly, with a few facts and some brief logical arguments, the transition in his attitude quickly occurred. Mr. Jones was transformed into a willing, even eager, participant in his witness preparation.
The second part of the intervention involved behavioral coaching. Mr. Jones was taught to inhale prior to speaking and to breathe out slowly while speaking. His voice became louder and his stammering ceased. His posture was corrected, but then he began to sit rigidly upright an over correction that had to be moderated. He was taught how to elaborate his answers so that they were less terse. He began to emanate confidence and a positive, hopeful, attitude. His attorney was then invited to utilize mock direct examination and cross examination. Throughout this process, Mr. Jones’ behavior was observed and appropriate feedback was provided. The young man was a quick learner, and his performance became excellent.
The young man was eventually convicted, but of second degree murder with the lightest possible sentence. The feedback from the attorney after the trial was that Mr. Jones had continued to gain confidence after the witness preparation consultation and had actually appeared in court somewhat over confident, quite the opposite of his former appearance. Specifically, the attorney stated that Mr. Jones had even begun to act a little “cocky” in court and that he, the attorney, had to caution Mr. Jones during the trial to moderate that over correction. Fortunately, the attorney had carefully noted the techniques used on Mr. Jones prior to the trial and was able to utilize the same approach successfully during the trial. The overall result was favorable in that Mr. Jones had faced life imprisonment.
Practical Tips for Enhancing Fact Witness Effectiveness
The previous examples provide concrete illustrations of how fact witnesses have been professionally prepared to enhance their effectiveness. Note that none of the preparation was directed at the content of the testimony; rather, efforts were concentrated on the presentation of the testimony. Witness preparation does not typically address what the witness says, but how he/she says something. The following discussion provides practical tips to facilitate the enhancement of fact witness testimony based on application of social psychological principles.
In order to apply these principles to maximize fact witness effectiveness, first the attorney must assess the specific demands on the witness required by the context in which testifying will occur. For instance, with expert witnesses, appearing nonbiased is crucial, whereas fact witnesses with a great stake in the outcome of their testifying will appear unbelievable if they attempt to appear nonbiased. Likewise, a fact witness who appears overly sure of him/herself, or too prepared, may invite disbelief whereas a high level of expressed confidence and preparation would, in general, be a valuable attribute of an expert witness. Thus, while there is no singular correct way for a witness to behave, the witness’ behavior should be congruent with the expectations of the fact finders. One example of meeting the jury’s expectations is paying careful attention to the physical dress of the witness to enhance likability. Rather than all witnesses dressing in a dark suit, factors such as age, station in life, etc. should dictate the clothing of the witness.
Second, an objective assessment of the presentation skills of the witness, relative to the task demands of the context, is mandatory. Assessing the witness in his/her presentation skills through direct examination and cross examination conducted in the presence of mock juries can reveal areas of deficit requiring attention. Mock jurors are typically forthright in expressing their opinions of witnesses; their confirmation of problem areas discovered by the attorney provides a valuable starting point for witness preparation efforts. When a witness has the opportunity to observe how he/she is perceived by jury eligible citizens, often the attorney will have little difficulty convincing the witness that pretrial preparation is warranted. While this process may be somewhat traumatic for the witness (depending on mock jurors’ reactions) preparation often makes the difference in winning or losing a case, as well as in the extent of damages awarded.
Third, a specific intervention plan appropriate to help the witness further develop his/her
presentation skills should be constructed and implemented. This plan could include further mock direct and cross examinations or other creative interventions to increase the effectiveness of the witness based on the principles outlined. A witness preparation expert should be consulted to create the intervention plan and to implement it with the attorney to enhance the performance of the witness.
Finally, it must be recognized that people with significant psychological disturbances often are relied upon to provide fact witness testimony. In addition, the stress of litigation can bring about psychological disturbances in relatively intact individuals who are relied upon to provide fact witness testimony. This suggests that professional mental health consultation with witnesses who reveal psychological difficulties may be frequently warranted as a major part of any strategy to enhancing fact witness credibility.
Ultimately, the jury decides who wins the case by evaluating the credibility and overall effectiveness of the attorneys, parties, and witnesses. Trusting a communication source, a witness, is more important than actual accuracy of a source, especially when technical matters are concerned. 44 Similarly, cross examination is more important in evaluating a witness’ effectiveness than direct examination. Jurors are increasingly cognizant of the fact that direct examination is conducted by a “friendly” attorney, such that points made under more hostile conditions will carry more weight. In general, jurors react more favorably to witnesses who behave as if they have been expecting to testify. Practicing one’s testimony by putting oneself in the jury’s place has been cited as one way to have maximum impact as a witness.45
As stated in the first section of this paper, little has been written about enhancing the effectiveness of fact witnesses. There are three practical guides for the novice expert witness, all of which are recommended reading for the attorney and witness alike.46 Each of these sources contain insights which are applicable to fact witnesses as well, particularly when the fact witness is testifying in complex litigation. The “five C’s of effectiveness”47 are important for all witnesses to consider as they prepare for their day in court:
∙ 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 and overstatements;
∙ be concise – do not wander or volunteer any information;
∙ be candid – be natural, sincere, honest, and graceful.
The preparation of fact witnesses for testifying should be an important part of the professional role of attorneys. In fact, it has been our experience that witnesses, fact and expert, often desire more thorough preparation by the attorney. Even experienced experts want to gain a greater understanding of what the attorney expects of them in depositions or trials. Fact witnesses, for whom the courtrooom is foreign territory, certainly need to be prepared for the critical role they play in litigation. The basic social psychological principles applicable to witness effectiveness in general should be kept in mind while preparing fact witnesses. However, because there are significant differences that need to be considered carefully in the preparation of fact witnesses, as compared to what is required of expert witnesses, the prudent attorney should carefully analyze how to apply these principles in each unique situation. It is hoped that the present discussion has clarified some of these issues, as well as has provided suitable illustrations through the examples offered to stimulate litigators to utilize productive efforts in enhancing the effectiveness of their fact witnesses as part of responsible legal practice.
In conclusion, a trial is an experience like no other. The only way to get information to the jury is through witnesses; attorneys cannot testify. There is only one opportunity for the witness to testify – if the witness does not make the right impression, the case may be lost. Witnesses, fact or expert, do not intuitively know how to communicate persuasively. It is the attorney’s job to teach the witness how to impart information for maximum effect. If the witness does not carry the day because of lack of preparation, the attorney has failed to fulfill his/her responsibility. An important part of the attorney’s responsibility is to take advantage of what social science has to offer.
1 We will refer to decision makers in this article as the jury, but this term is also applicable to judges, arbitrators, or other relevant decision makers in the legal arena.
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Summary of Factors Related to Witness Effectiveness
∙ Communications Styles
Common Themes in Advice to Experts
∙ Develop courtroom rapport;
∙ Develop experience for both sides;
∙ Develop the ability to tell a story or paint a picture for the jury;
∙ Modify approach based on observation of jurors̓ reactions;
∙ Work with the attorney to be spontaneously honest;
∙ Prepare a written summary of proposed testimony for the attorney;
∙ Eliminate jargon from speech;
∙ Consider retaining an attorney to represent own interests;
∙ Answer only the questions that have been asked;
∙ Maintain integrity;
∙ Be forthcoming during cross examination;
∙ Coordinate with the attorney on all aspects of testimony;
∙ Separate fact from opinion;
∙ Learn everything possible about opposing counsel;
∙ Be totally competent in field of expertise;
∙ Recognize the difference between science and common sense;
∙ Anticipate questions from opposing counsel;
∙ Verify opinions with other experts;
∙ Have practical experience in field of expertise (research and teaching are
∙ Be analytical and creative.Acknowledgements
Special thanks go to Robert R. Feagin, IV and Neal F. Webb for providing the background research for this article. Thanks are also due to Lazara Varona for preparing the manuscript and to David Fauss and Bernard Salzberg, Ph.D., Esq. for their suggestions upon reviewing previous drafts of the paper.