Attorney at Law Magazine Phoenix May 2013 : Page 29
Jury Research The Angry Witness By Jan Mills Spaeth, Ph.D. A ngry witnesses can be difficult to prepare for testifying at hearings, depositions, or trials because they want to project their frustrations, not cooperate or help. Here are some tips for dealing with them. First, recognize the anger. If not recognized, anger cannot be addressed. Although typically obvious, anger can manifest in subtle or passive-aggressive forms. For instance, it may express itself in snide comments, a shake of the head, silence, grudgingly given responses, and/or sarcasm. Second, find the anger source. Does the witness or client feel unjustly accused? Does he feel this case is a waste of time? Is lack of money causing stress? Are family members creating problems? Is a job or career being threatened? The trigger behind anger is usually a concern with a loss of some sort, and it is essential to identify this loss. Anger can also result from jealousy, and/or a sense of injustice. In one of my cases, a sister of a vehicle accident victim was an uncooperative witness because she resented the attention given to her injured sibling by their parents, leaving her relatively ignored. In an employee discrimination case, a co-worker felt the plaintiff was “milking” the situation, and trying to get “something for nothing.” Her testimony was laden with sarcasm. Third, dissipate the anger. Give the angry witness a chance to express anger, if he/she will do so. Acknowledge the anger without judging. Once you know the anger source, look for solutions. It may be helpful to have the witness write out his or her feelings and reasons for anger, partly for catharsis and partly for your knowledge. Once you know the source of the anger, steps can be taken to rectify this. For example, in the case of the jealous sister, after our discussion the parents realized that they had been favoring the injured sibling at the expense of attention toward the sibling’s sister. Once they acknowledged this, apologized for it, and resolved to balance their attentions, the sister’s resentment softened and she transformed into a helpful witness. In the discrimination case, once the co-worker learned the plaintiff ’s allegations were backed by evidence, the co-worker’s sense of injustice evaporated. Fourth, redirect the angry witness. Once anger has been recognized and addressed, shift the witness’ attentions in a productive direction. Get the witness focused on tasks. What can he tell you about the case? What questions does she have about testifying? What concerns does he have? What suggestions would she make? What role does he perceive for himself in your case? Ask your angry witness to describe what is going well in her life at this point. What is making her happy, in spite of the lawsuit? What has the witness done lately that brought enjoyment? This shift will often subside anger as well. (Unless the answer is “nothing”!) Fifth, focus on perception. Most witnesses want to make a good impression, even if they are angry. Ask an angry witness how she wants to be viewed by the jury or fact finder. What impression does she want to make? Professional? Helpful? Honest? Does anger fit in with this image? If she realizes it does not, she is more motivated to work with you on presenting differently. Videotaping the witness, and showing her this clip, can help her see how negatively her anger is coming across. Sixth, focus on the audience. Remind the angry witness that when testifying, the jury or fact finder is the audience, not the opposing attorney or parties. Witnesses forget this critical fact. Give your angry witness an alternative, such as imagining answering questions as if the questioner was a small, 65 year old lady, with white hair, who is sincerely interested in the witness’ answers. Changing the perceived “audience” often mellows an angry response! Also, if the opposing attorney triggers anger in your witness, suggest that this witness look at the neckline, collar or tie of the opposing attorney, rather than making direct eye contact. These are a few of the techniques that we use when dealing with angry witnesses. Please feel free to contact us for more suggestions. Jan Mills Spaeth, Ph.D. and Rosalind R. Greene, J.D., are litigation consultants with Advanced Jury Research, based in Tucson. They work in all aspects of trial consulting and have written extensively on legal issues. Working throughout the state and nationally, they assist with jury selection, witness preparation, case strategy and focus groups/mock trials. Dr. Spaeth has published DVDs on witness preparation with the American Bar Association, and has another set coming out this spring. Jan Mills Spaeth, Ph.D. and Rosalind R. Greene, J.D. can be reached at 480-753-3771 or 520-297-4131. AJR’s website is www.adjuryresearch.com.
Jan Mills Spaeth
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