May 2006
Witness Preparation by Trial Consultants: Competitive Advantage or Invitation to Discoverability
by Craig C. New, Samantha Schwartz, and Gary Giewat
The witness stand is hardly a place that promotes calm, collected, and complete testimony. More often it is a place of anxiety, fear, and confrontation. Nonetheless, it is through the process of direct- and cross-examination that the witness speaks and from which the jury must find the truth.
In cross-examination, the deck is truly stacked against the witness. She is questioned by one who feels much more at home in the courtroom. The attorney has questioned many witnesses before her, and he will question many after. He has been trained in law school for this very task, in addition to the advice and tips he has received from his colleagues and mentors. The witness, on the other hand, has in many cases never entered a courtroom, much less been examined adversely by a professional. She has never tried to tell her story in a courtroom, under the scrutiny of the judge and jury. Even if the witness knows exactly what she wants to convey, feelings of dread and a lack of confidence inhibit her ability to have the jury accurately perceive her meaning and intentions. Alternatively, some witnesses may be overconfident coming into their examination only to find the task harder than they thought. Either mindset can lead to devastating consequences for the attorney and the case.
It goes without saying that cases can be won or lost on the performance of key witnesses. No attorney would ever dream of putting an important witness on the stand without some form of practice or preparation. However, skepticism remains over the extent of an attorney's preparation and the ability to alter the witness's original memory, despite the ethical guidelines of the American Bar Association's Model Rules of Professional Conduct. This skepticism is furthered because witness preparation is generally protected by the attorney-client or work-product privilege, allowing attorneys to conduct it in private without the risk of discovery by the other side.
The benefits of a prepared witness clearly outweigh the risks. Lawyers need to work with witnesses in advance for a number of reasons as part of their duty to produce relevant and reliable testimony. Witness preparation not only provides the attorney with an opportunity to assess the witness's credibility, certainty, and accuracy of recollection, it provides the witness with the opportunity to learn how to communicate more effectively.
Trial Consultants: Aggravating or Mitigating (the) Circumstances?
Witness preparation with the aid of trial consultants has become increasingly common in cases both large and small. Its prevalence has brought with it increased scrutiny and controversy in the legal community. The most ardent opponents of witness preparation by trial consultants are likely to perceive the practice as a means to fabricate, exaggerate, or restrain aspects of testimony.1 Some professionals in the legal community have questioned whether trial consultants are properly trained to participate in witness preparation, particularly if they do not have legal training. A related concern is that trial consultants are not required to earn a license and are not necessarily regulated by ethical guidelines. Although the American Society of Trial Consultants (ASTC) has established a Code of Professional Standards and a formal grievance procedure, membership in the organization is not required to practice trial consulting. In contrast, attorneys risk suspension or loss of their license if they do not adhere to the ABA's guidelines — a severe detriment to their career.
Notwithstanding these criticisms, the use of trial consultants in preparing witnesses to testify remains commonplace. Attorneys, who are trained to focus on case-relevant law and evidence, rely on the content of testimony to support their client's case. Trial consultants typically focus their efforts outside of the pure content to critical factors impacting credibility such as the witness's body language, speaking style, and varied paralinguistic cues.
The New Assault
A new assault on witness preparation by trial consultants has been mounted in Washington as well as other states. Those behind the latest challenge have asserted that witness preparation by nonlawyers is not protected under the attorney-client privilege and thus should be discoverable. The central argument of these individuals is that the jury is entitled to judge witness credibility based on a "natural" presentation of the witness, and witness preparation may camouflage that. For example, part of this judgment includes an evaluation of "the manner of the witness while testifying" and "any other factors that affect [jurors'] evaluation or belief of a witness or [jurors'] evaluation of his or her testimony."2 These "other factors" can include aspects such as the witness's overall demeanor, appearance, posture, and vocal inflection. The bottom line for these opponents is that, if trial consultants change or help an attorney change these aspects of a witness, the jury should know about it. However, this argument has two fundamental flaws.
First and foremost, it assumes the attorney cross-examining the witness is an unbiased truth-seeker, as opposed to an advocate. The adverse attorney is a zealous advocate for the client, and the goal is often to muddy the waters, confuse the jury, or attack the credibility of the witness. The cross-examining attorney prefers witnesses who are more susceptible to tactics that can accomplish these goals, and a practiced and prepared witness is more resilient to these attacks.
A second flaw in this argument is that it assumes trial consultants have special powers to change a witness's demeanor and presentation in ways an attorney cannot. While attorneys are bound by codes of ethical conduct, these codes in no way prohibit the attorney to advise a witness on manner of dress, nonverbal cues, or other factors contributing to credibility. If properly trained in communication, attorneys could offer witnesses the same advice as trial consultants, and the adversary would have no recourse.
So what is the bottom line? In our adversarial legal system, the role of a trial consultant is to provide services that are used to facilitate clear communication and assist witnesses in telling their story. They do not wave a magic wand and "change" a witness's testimony in mysterious ways, nor advise the witness to say anything less than truthful. The reality is that attorneys place a great deal of value on witness preparation and as an advocate for their client should have access to all the tools available to them as long as they are within the ethical guidelines proscribed by the ABA. Ultimately, it is the attorney's decision to choose whether to use trial consultants at all and the strategies or advice they provide.
How Do Trial Consultants Help With Witness Preparation?
Witnesses will often say practice is unnecessary: "I'm just going to get up and tell the truth." It is useful to ask such a witness two questions: "Have you ever been misunderstood?" and "Have you ever had someone deliberately try to twist your words?" In all likelihood, opposing counsel wants both of these events to occur in court. There are many ways to tell the truth, and at trial the truth needs to be told clearly and concisely in order for the fact-finders to do their job effectively. Attorneys have found trial consultants particularly resourceful for helping the witness to communicate information accurately and efficiently, improving the witness's composure on the stand, and ensuring that the witness's testimony remains more salient than judgments based on juror biases.
Accuracy
Accurate communication by the witness is keenly important to the jury as well. Accuracy means more than telling the truth. It also means choosing the right words and phrases to convey accurately your meaning to the jury. In a classic study, psychologists illustrated how one simple word can affect the impact of a message by manipulating the verb ("hit" versus "smashed") to describe the collision of two cars.3 When people were asked to estimate how fast a vehicle was traveling when it "smashed" into another vehicle, they provided significantly higher speed estimates than when the same question was presented using the word "hit." Trial consultants work with the witness and attorney to ensure that the proper words are used so that the message will be understood as it was intended.
Efficiency
Another area where trial consultants help is with the efficiency of the witness's communication. Jurors must sift through a great deal of sometimes complex information to find the truth — a challenging task that becomes even more difficult when witnesses are not concise or prone to digressions. Such testimony can impede the jury's understanding of how the pieces of trial evidence fit together. To the extent trial consultants can help a witness communicate his message more succinctly, the jury's job is made easier.
Composure
One of the commonsense cues jurors use to identify deception in witnesses is nervousness.4 In mock trials and in post-trial interviews with jurors, trial consultants frequently hear comments such as: "Did you see that witness? Boy he looked nervous; he must be lying." Testifying produces anxiety, and one goal of the trial consultant is to decrease the level of nervousness the witness feels when he takes the stand, and to give the witness coping strategies.
Appearance
Often, jurors are influenced knowingly or unknowingly by inaccurate and unfair biases such as stereotyping, which may detract from their understanding or validation of the witness's testimony.5 For example, people may perceive a middle-aged man with long hair as an irresponsible person of low character. A trial consultant can recognize the potential influence of such debased judgments on the jury and can advise the attorney accordingly (e.g., making a suggestion regarding the witness's grooming) to eliminate this extraneous variable from the jurors' evaluation of the witness's testimony.6
Conclusion
Do jurors take a dim view on the practice of witness preparation? Do they share the same skepticism as some attorneys or legal scholars? The answer seems to be no. A research project conducted by members of the ASTC7 involving more than 500 jury-eligible citizens throughout the United States found 73 percent of respondents believe preparing witnesses to testify is a good idea. Another 66 percent agree that it is appropriate for a witness to practice before testifying. Less than 15 percent of respondents believe that witnesses who practice their testimony have something to hide.
The criticisms and attacks on the practice of witness preparation by trial consultants appear to be a tactic by some attorneys to scare others away from leveling the playing field. In 2003, the U.S. Court of Appeals for the Third Circuit found that witness preparation by nonlawyers (i.e., a trial consultant) was protected under the work product privilege,8 based on their interpretation of Rule 26(b)(3) of the Federal Rules of Civil Procedure. This very strong opinion finds witness preparation by consultants to be "core" work product and therefore deserving of the highest level of protection. The lack of activity in the other circuits suggest that few believe the basis for a credible attack on the process exists. While the matter cannot be called settled, it would require a dramatic shift in prevailing thought for the status quo to change.
Craig C. New, Ph.D., is director of research for Tsongas Litigation Consulting, Inc., a Northwest trial-consulting firm with offices in Seattle and Portland, serving clients in 40 states. Samantha L. Schwartz is a doctoral candidate in the Law/Psychology Program at the University of Nebraska-Lincoln and a member of the research committee for the American Society of Trial Consultants. Gary R. Giewat, Ph.D., is a trial consultant and chairperson of the Research Committee for the American Society of Trial Consultants.
NOTES
1. Applegate, J.S. (1989). Witness preparation. Texas Law Review, 68, 277-352; Boccaccini, M.T. (2002). What do we really know about witness preparation? Behavioral Sciences and the Law, 20, 161-189.
2. Washington Model Instruction 6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 1.02 (5th ed.); Washington Practice Series, Washington Pattern Jury Instructions — Civil, Washington Supreme Court Committee on Jury Instructions; Part I. General Instructions, Chapter 1. Introductory and General; WPI 1.02. Conclusion of Trial — Introductory Instruction.
3. Loftus, E.F. and Palmer, J.C. (1974). Reconstruction of automobile destruction: An example of the interaction between language and memory. Journal of Verbal Learning and Verbal Behavior, 13, 13, 585-589.
4. Pryor, B. and Buchanan, R.W. (1984). The effects of a defendant's demeanor on juror perceptions of credibility and guilt. Journal of Communication, 34, 3, 92-99. Zuckerman, M., Koestner, R., Driver, R. (1981). Beliefs about cues associated with deception. Journal of Nonverbal Behavior, 6, 2, 105-114.
5. Colwell, L.H. (2005). Cognitive heuristics in the context of legal decision making. American Journal of Forensic Psychology, 23, 2, 17-41.
6. Herbert, D.L. and Barrett, R.K. (1980). Attorney's Master Guide to Courtroom Psychology: How to Apply Behavioral Science Techniques for New Trial Success. Englewood Cliffs, N.J.: Executive Reports Corp., 308-09.
7. New, C., Schwartz, S. and Giewat, G. (2005). Lay Perceptions of Witness Preparation. Presentation at the Annual Conference of the American Society of Trial Consultants, Philadelphia, PA.
8. In re Cendant Corp. Securities Litigation, 343 F.3d 658.
