Arriving for the preparation meeting, the witness notices that there’s someone new in the room: a communications consultant. A non-lawyer visiting from out-of-town, the consultant is introduced by the lawyer as a specialist in legal communication and as someone who “is here to help us prepare for your testimony.” Over the course of the meeting, the consultant does just that. In addition to familiarizing the witness with the process of trial or deposition testimony, the consultant provides an overview of main goals, conveys a clear list of “do’s and don’ts,” and warns about potential tricks and traps. In addition, the consultant also watches practice testimony and provides focused and concrete feedback on both the style, as well as the content, of the responses. All of that is helpful, but in addition to what the consultant does, the presence of the consultant alone also conveys a message.
Bringing in a witness consultant is not always necessary, but when it is, the person can provide both substantive and symbolic assistance. In addition to helping with the testimony’s process and product, the presence of a consultant also provides an additional value-add by sending a message to the potentially stressed and wary witness. And with just one possible exception, it is a positive message. I don’t know that ‘message effect’ has been researched, at least in a nonproprietary format, but based on my experience, I think that this ‘message effect’ of a preparation session can be every bit as powerful and important to the witness as the more concrete advice they receive. In this post, I’ll share a few of my thoughts on the symbolic takeaways to consider when deciding whether your witness could benefit from an outside consultant.
Address the Possible Negative Message
I noted that there was just one possible exception regarding the positivity of the message, so let’s get that one out of the way at the outset. The possible negative message is that a witness might see that an outside specialist has been brought in and think, “Wow, there must be something wrong with me…. They think I need special help to get through this, so now I’m even less confident.” This reaction is possible, but can be easily countered. The answer is to normalize it. I will tell witnesses that I do these across the country, for all kinds of witnesses, and that it is increasingly becoming the norm in mid- to higher-stakes litigation. That’s the truth. Witnesses appreciate knowing that it isn’t some kind of drastic intervention to have someone there whose eye is purely on the communication and that helps to shift the focus to the positive messages.
Leverage the Positive Messages
The presence of a litigation communications specialist implicitly, and sometimes explicitly, conveys a number of important messages to the witness about their upcoming testimony.
“We Care How You Do”
Bottom line, the new person’s presence signals to the witness, “This is important.” It could help the witness who feels blase or disconnected, but it can also help the witness who feels overwhelmed. Witnesses, especially individual defendants, can often feel a bit powerless in this process, but their testimony is one phase, perhaps the only phase, in this complex process that they do control. Underscoring that can raise the stakes and encourage the witness to step up their game.
“We Care How You Feel”
An equally important message is that we don’t just care about the testimony, but we also care about your comfort and confidence while delivering it. That is true not only because the litigation process should be humane, but also because the testimony is much more likely to be seen as credible and reliable when it is delivered by someone who seems to believe it, and is at ease with their own testimony and role in the process.
“This Takes Some Savvy and Practice”
The presence of a specialist also says this is a specialization. This is not a routine matter of “just answer the question,” or even, “just do what your lawyer says.” Rather than being another box to check in the process, it is a key defining moment, and there are a certain set of considerations and skills that are worth taking some time to analyze, adopt, and practice.
“We Have Resources to Help You”
It is important for witnesses to understand that they’re not on their own. There’s a team to help them. The main person in their corner, of course, is their attorney. But there is also, for many, an insurance representative, one or more experts, and a consultant to help with the testimony. Thinking from the perspective of the witness who may feel confused and accused, the message that there is a full-court press of people on hand to help can be reassuring.
Ultimately, for litigators and others who are managing the case up through trial, the witness preparation phase is one of those moments where a little bit of extra attention can pay off massively in the ultimate resolution of the case. For that reason, it helps to pay attention not just to the substantive help your witness gets, but also to the broader messages that this help conveys.
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