While we all want to make sound decisions, the amount of thoughtful attention we are willing or able to invest in that process varies according to the situation we find ourselves in and from person to person. When we lack motivation or ability, we fall back on mental shortcuts to help us make decisions. Hence, it is important to know which of such shortcuts your fact finder may use when deciding whether your witness’s testimony helps or hurts your case, and to factor this into your preparation strategy and communications training.
The particular array of mental shortcuts varies by witness, subject matter, and fact finder—ranging from non-verbal behavior such as fidgeting, tone of voice, and eye contact, to judgments about the witness’s appearance and competence, to preconceptions and attitudes about the underlying case and the role of the witness within the case. During a trial simulation on the East Coast in which the degree of West Coast corporate witnesses’ due diligence was at issue, the New York jurors made negative snap judgments about the executives’ testimony based largely on their deep tans. It was easy for jurors to concur with opposing counsel that these witnesses had dropped the ball, when they were clearly so busy “baking in the California sun.” Fortunately, the trial simulation was in late November, a couple of months before trial, allowing plenty of time to fade those apparently telling tans.
It is possible to obtain very detailed feedback on witness mannerisms, demeanor, likeability, credibility, overall impact, and reactions to ostensibly favorable or unfavorable deposition testimony through evaluating excerpts of videotaped depositions or mock testimony in focus-group or online-jury research. Such research can tell you in advance of trial the various mental shortcuts that decision makers may make about your key witnesses, particular fact pattern, and venue. It can also help quantify the risks associated with certain witnesses, identifying both strengths and remedial areas to address in preparation sessions.