Making Better Witnesses--The LOFT Model
To be effective a witness must communicate his or her story to the jury, both factually and emotionally. Failure to do so can lead to catastrophic results. Helping people become better witnesses requires preparation, not just for trial but for depositions as well. What follows is the LOFT model of witness preparation.
The LOFT model stresses the main components of preparing a witness for testimony, including: (a) Listening to the witness; (b) Observing how the witness presents himself/herself; (c) providing Feedback to the witness; and (d) Teaching the witness how to more effectively present himself/herself (both during depositions and at trial). The goal of this model is not to change the testimony of the witness but to insure that the witness communicates his or her testimony in the most persuasive manner.
"Listening" may be the most underrated and most difficult skill in witness preparation. What is the witness telling you--beyond what you may want to hear--in terms of what the witness is saying or revealing? Listen to the directness of the speech, choice of words, patterns of speech, clarity, and tone of voice for clues to the strengths and weaknesses of your witness's testimony.
What style of speech is being used? The directness and confidence with which witnesses tell their story affects their credibility and persuasiveness. Direct and assertive speech projects confidence resulting in greater credibility and persuasiveness. Consider the following ways in which a witness could describe his/her opinion concerning whether a doctor met the standard of care in a medical negligence case. "Dr. Jones met the standard of care," "I believe that Dr. Jones met the standard of care," or "It would appear that Dr. Jones met the standard of care." The first statement is clearly more powerful than the latter two responses.
Listening to the directness of the speech used can indicate red flag areas where the witness is uncomfortable with what is being said. Discuss these areas with the witness to uncover and potentially resolve this discomfort. Witnesses may subtly qualify their testimony because they have not resolved their opinion on the matter at issue or are simply nervous with having to testify at trial. For example, an expert may not agree with what was done but still feel that the defendant's actions met the appropriate standard of care. This disagreement, if not addressed and resolved during preparation, can lead to the witness inadvertently qualifying his or her opinion, leaving jurors to infer that the witness has reservations about the ultimate standard of care issue. The same can be said for the witness who does not want to testify but, because of the situation, is forced to do so. Anger over having to testify can lead to subtle qualifications or even negative comments on the matter at issue. Failure to recognize this and defuse it during preparations can lead to the witness's testimony having a hollow ring to it.
What words are chosen? The words witnesses choose influence their effectiveness. Words carry different meanings which can change the way jurors view the story being described and its persuasiveness. For example, a rescue worker describing the collapse of a building on the plaintiff as "he was covered by debris" evokes a different mental image than the more powerful "he was buried alive."
The psychological distance generated by the words can also change impressions of the story and the witness. Psychological distance refers to "how close" the words reflect the relationship between the speaker and the object about which he or she is speaking. This psychological distance does not necessarily reflect relationships such as friendships, but rather the comfort level of the speaker with the object in question. For example, a doctor may refer to a baby who suffered brain damage as "Betsy Smith," "the patient," or "it" (yes, it happens). What juror would believe that a doctor who refers to a baby as "it" would be a good and compassionate doctor?
What is the pattern of speech? Several aspects of the pattern of speech used by witnesses are important. Disruptions in the normal pattern of speech reduce the witnesses' effectiveness. Jurors view disruptions as a sign of possible deception. "Ums," "ers," "uhs," and pauses and hesitations break up the flow of speech and yield a less persuasive witness. Second, rising intonation at the end of the answer or sentence can reveal uncertainty on the part of the witness. Third, a moderate to slightly fast delivery style tends to promote persuasion. Finally, irrelevant speech is a red flag of problem areas in the testimony. You should be alert to those times when a question calls for a short answer, but the witness responds with a long answer containing irrelevant information. Such answers reveal opportunities for addressing and resolving problem areas where the witness is uncomfortable. At trial, irrelevant answers can lead jurors to conclude that the witness is being defensive, evasive, or even pretentious, none of which enhance persuasion.
How clear and understandable is the story? Fundamental to effective communication is the ability of the witness to tell the story clearly. Listening to the story--as jurors would hear it--is crucial. Clarity and simplicity is the key, particularly with expert witnesses or witnesses covering technical information. Use of technical or sophisticated language diminishes the witnesses' effectiveness. When some witnesses are defensive or nervous about their testimony, they resort to the use of jargon or sophisticated language. While "hiding behind jargon" allows the witness to feel more secure, it substantially reduces the effectiveness of the witness. Jurors often express positive views of expert witnesses who are good "teachers" and negative views of expert witnesses who are unable to tell their stories in terms that lay people can understand.
What is the tone of voice used? Jurors dislike witnesses who speak in a cold and condescending tone of voice. Jurors resent being "looked down on." A warm/friendly or approachable witness with a respectful tone of voice promotes credibility. Practice with cold or condescending witnesses to remove, or at least minimize, these barriers to persuasion. Oftentimes, helping the witness to view the jury with respect will reduce cold and condescending tones of voice.
The second component of the LOFT model is observing how the witness communicates his or her testimony nonverbally. As the witness goes through his or her testimony, ask yourself several questions.
What does the witness's posture and orientation tell you? Is the witness's posture rigid? A relaxed posture (without slouching) communicates confidence and enhances credibility. Does the witness show signs of defensiveness or nervousness through a "closed" orientation? Crossing the arms and legs and/or turning the body away from the listener, either questioner or jury, "closes off" the relationship between the witness and the listener--resulting in a less effective witness.
What body movements does the witness make? The movements of the witness's body can enhance or detract from the persuasiveness of the witness. Movements that show involvement in what is being said promote credibility. For example, illustrative movements showing how components or devices work are effective. However, movements that reflect nervousness tend to reduce a witness's credibility. For example, wringing hands, tapping fingers and toes, shifting postures, and pulling one's hair reflect nervousness and diminish credibility.
What facial expressions are present? While the body reveals more information about deception than the face, people tend to look to the face for information in evaluating the witness. As such, you should pay attention to the facial expressions witnesses have during their testimony. Do witnesses have a sad or pained expression when they say something that is sad (e.g., expressing loss or grief)? Facial expressions that are consistent with what is being said promote credibility. Facial expressions that are inconsistent or inappropriate for the circumstances reduce credibility. For example, the witness who has a small smile while describing the loss of a loved one is showing an inappropriate facial expression. While this type of smile may just reflect nervousness, it appears to jurors as reflecting a lack of genuine loss on the part of the witness.
Is there eye contact? Eye contact enhances credibility. Maintaining a moderate to high level of eye contact with attorneys and the jurors when giving answers promotes credibility. Problems arise when witnesses avert their eyes at key parts of their answers. For example, witnesses who look down or avert their eyes while giving an answer instead of "looking the attorney or the jury in the eye" lose credibility.
Is the total package consistent? Consistency between what is being said and how it is being said is critical for effective communication. When witnesses express feelings or emotions, such as anger, sadness, or outrage, does the "body" back it up? For example, witnesses who express outrage, while exhibiting a calm demeanor, lose credibility points with the jury. The inconsistency in emotions and supporting body movements not only appears with the absence of supporting body movements but also with delayed body movements. Witnesses who express emotions verbally (e.g., angry words) while the onset of supporting body movements (e.g., hand striking a book or table) are delayed suffer a credibility loss.
Providing feedback to witnesses after the previous steps is crucial to the LOFT model and requires the skills of both a lawyer and a psychologist. The goal is to provide feedback that the witnesses can "hear" and assimilate. You must be sensitive to the differing levels of ability of the witnesses to hear the feedback in a nondefensive manner. Starting with a discussion of the positive points of the testimony is helpful. Provide compliments and positive observations on portions of the witnesses' testimony that are powerful or useful. Positive feedback provides several important benefits. First, it makes it more likely that witnesses will make similar statements in the future. Second, it makes witnesses feel more confident in their testimony. Third, it fosters greater rapport with witnesses. Finally, it helps to defuse defensiveness.
In addition to reinforcing the strengths of the witnesses' testimony, you must address their weaknesses. Supportive and empathetic feedback helps witnesses to face their weaknesses and to build a better foundation for their testimony. For example, a father may have trouble putting into words his feelings concerning his special relationship with his son who was killed in an automobile accident. Supportive and empathetic statements will help the father open up: "I know it's often hard to talk about the kind of relationship that you had with Jimmy. You and I know what a special boy he was. However, the jury doesn't know him. I want them to hear more from you about the special boy that Jimmy was. Let's give the jury a chance to know Jimmy."
Sometimes a more direct approach is warranted, particularly where the actions of the witness are being questioned. Such situations can challenge a witness's core beliefs about their decision making abilities or skills. As a result, a witness may experience some feelings of guilt (particularly when the outcome was catastrophic) even though his or her actions were appropriate. If the witness's demeanor or speech reflects this abstract guilt, jurors may misinterpret this as the witness feeling that he was at fault. It is sometimes necessary to challenge this belief by having the witness directly confront this issue: "You know, what you just said sounds like you think you were at fault. Is that true? Do you believe you were at fault?" Combining this with supportive and empathetic comments can get the witness's natural feelings of guilt out in the open so that they do not taint any discussion of the appropriateness of the actions taken.
In providing feedback, you again apply the skills of listening and observation. Recognize that this is also an opportunity to discuss any reservations, concerns, or uncertainties witnesses may have. Some witnesses are not in touch with their feelings, are unsure how to express themselves, or are concerned about what people might think of them. By "hearing" and "seeing" these issues, you can discuss them during the preparation process and make witnesses feel comfortable and confident in what they have to say.
Two final points on feedback should be made. First, sometimes nervous movements are appropriate and reflect what witnesses should be feeling, e.g., describing the trauma suffered in a violent attack. "Correcting" behaviors should only occur if these behaviors detract from the effective communication of the story. Second, you should always keep in mind that witnesses should not be more concerned with correcting communication problems than with simply telling their stories to the jury.
While the feedback step in the LOFT model overlaps with the teaching component, it does not provide all that is necessary to help witnesses become more effective. Three techniques of teaching are useful: (a) mock examination, (b) homework, and (c) guidelines.
Mock examination. Good witness preparation includes a chance to learn by doing. Having witnesses go through a "dry run" of the experience they will face helps them reduce their level of nervousness. Conduct the mock examination in surroundings similar to what the witness will face at trial or deposition. An actual or mock courtroom is ideal for trial preparation, but an office or conference room will still afford witnesses the opportunity to reduce anxiety by going through the experience of examination.
A key to conducting a mock examination is to maintain a formal atmosphere. Seek out a location that promotes formality. Your office or a courtroom offers a more formal atmosphere than the witness's office or home. The "home turf" nature of a witness's office or home artificially decreases the anxiety associated with the testimony at a time when you want to see how the witness responds to such anxiety. Reinforce the formal atmosphere before the examination begins. Inform the witness of the need to suspend informalities during the examination. If possible, for cross-examination, an attorney who does not have a supportive relationship with the witness should conduct the examination. In any event, the witness will benefit more from exposure to a realistic cross-examination (including a "tough" examiner) than exposure to a "friendly and supportive" cross-examination.
Jurors report that the use of physical exhibits by a witness is often helpful to their understanding of the testimony. The use of physical evidence or demonstrations by a witness also allows the opportunity for the witness to act as a teacher and can lead to the witness being more comfortable in relating the testimony. If physical exhibits are to be used, the witness should use the actual exhibits or mock-ups during the mock examination. The greater familiarity produced by this practice will lead to more confident testimony.
Homework. In some cases, witnesses will benefit from "exercises." This homework may include asking witnesses questions that will promote their thinking about aspects of their testimony that lacked emotion, feeling, or clarity. For example, "How did you feel when you found out that the other company had stolen your idea?", or "What went through your mind when you found this out?" will get witnesses to be more in touch with desired feelings. Also, exercises that have witnesses list in detail certain events or feelings are helpful in fleshing out superficially treated parts of the testimony. However, tell witnesses not to bring any of these notes to the deposition or trial.
Guidelines. Finally, explain the do's and don't's of testimony. Guidelines such as: "Think before answering the questions," "Don't guess at an answer," "Don't volunteer information on cross-examination," and "Be willing to admit uncertainty on minor points" are helpful tips that allow witnesses to have a better understanding of what they are to do. This discussion will allow witnesses to voice any fears or questions they may have about the process and thus to provide an opportunity to further reduce needless concerns or anxiety. Finally, always include the admonition that witnesses should tell the truth. By explicitly stating this goal, witnesses will be more candid, a necessary ingredient in the preparation process. Remind the witnesses that should the opposing attorney ask them what their attorney said to them in preparation, the witness can honestly say, "Ms. Jones told me to tell the truth."
When to Start
Traditionally, witness preparation has been relegated to some time immediately preceding the trial--in some cases, the night before the witness takes the stand. However, the LOFT model should be applied as part of the overall litigation process.
It should be employed in anticipation of depositions. The goal of the LOFT model is to make people better witnesses. All too often, needless "bad" comments are made during deposition and come back to haunt the witness at trial. Particularly in this age of videotaped depositions, bad behavior can be recorded for posterity, possibly making an undesired appearance during cross-examination. Imagine how a jury responds to a witness who confidently says one thing during direct examination but is later confronted with a videotape excerpt showing the witness saying something damaging or acting in a clearly evasive or defensive manner.