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For most people, testifying under oath is an anxiety provoking experience. However, there is nothing wrong with a witness being a little nervous.
From an evolutionary perspective, anxiety is an innate function that plays a vital role in survival. That is, anxiety is a heightened state of awareness that prepares a person to react to the environment (i.e., fight or flight). The same applies to witnesses. A little anxiety helps witnesses maintain focus. Once the anxiety subsides, and the witness lets his guard down, he is more likely to make mistakes. So even if you could eliminate all of a witness’s anxiety about testifying, why would you want to? Witness anxiety is only a problem when it interferes with the ability to communicate. Therefore, the focus should be on controlling anxiety – not eliminating it.
The main causes of witness anxiety are:
- the fear of the unknown;
- the fear of public speaking; and/or
- the fear of ruining the case.
The Fear of The Unknown
For most witnesses, the fear of the unknown can usually be addressed by sitting down with the witness and explaining the process. Witnesses do not know what to expect, and it is easy to take their inexperience for granted. After briefly explaining how the process works, ask the witness what questions he has. He will probably want to know general information, such as what to wear and how long his testimony will last. However, he may also want to know what types of questions the other attorney will ask, which might be a red flag.
Some people have things in their personal lives that they keep personal – skeletons in the closet, so to speak. If a witness is concerned about secrets being revealed, it is important that you know. For example, sexual orientation may have nothing to do with the case; however, witnesses are often under the impression that, once on the stand, anything goes. So if a witness has had homosexual relationships but never discussed the issue with his family, he may be extremely fearful that opposing counsel will bring it up. Perhaps there was a DUI conviction or some other illegal activity that has been kept secret. Your witness’s personal life is not your concern. However, anything that will hinder his ability to tell the truth is your concern. Discussing these issues with a witness will help put his mind at ease and ultimately improve his performance.
It can also be very helpful for the witness to have prior courtroom experience. Therefore, take the witness to the courthouse to see live testimony of a different case. During recess, let the witness explore the courtroom and sit on the witness stand. Being able to visualize the layout of the courtroom, as well as seeing the entire process from the time a witness enters the courtroom until he is excused, will drastically reduce your witness’s fear of the unknown.
The Fear of Public Speaking
The fear of public speaking is the most common phobia in the United States and it can be a vicious cycle. For people who have panic attacks, the biggest fear in life is to have a panic attack (especially in public). That fear, of course, causes more panic attacks.
The same holds true for public speaking.
When people are nervous about public speaking, they tend to get nervous that they will look nervous, and that causes additional nervousness. However, if a witness’s hands are shaking a little, that is fine. The jury will not hold it against him. If anything, they will feel sympathy for the witness. It is only a problem when that nervousness goes to the extreme and becomes a distraction.
Therefore, if you tell a witness that he cannot look nervous, you are putting undue pressure on him, and it is likely to backfire, causing him to be more nervous than he would have been otherwise. Most psychologists would agree that it is much more effective to validate the witness’s fears by acknowledging that they are legitimate, explaining to the witness that everyone gets nervous about testifying, and then teaching the witness ways of dealing with the anxiety.
There are two ways of dealing with anxiety caused by the fear of public speaking: treating the source and treating the symptoms.
The fear of public speaking comes from a lifetime of experiences, so treating the source is not realistic in most cases. In extreme situations, with key witnesses and a lot of time, it is not unheard of for a witness to sign up for Toastmasters or take a college course on public speaking. The purpose is to simply give the witness some experience in front of groups. (Obviously, the witness would not be practicing his testimony in front of those people.)
However, for most witnesses it is more realistic to focus on minimizing the symptoms. For example, if the witness fidgets or shifts around in his seat because he is nervous, make sure he is aware he is doing it. Encourage him to relax, give him compliments on the things he is doing well, and then ask that he try to sit still. The jury will look past small displays of nervous behavior, but if the fidgeting, grooming, etc., gets out of hand, the jury will be distracted or, worse yet, interpret his nervousness as a sign of deceit.
The Fear of Ruining the Case
Finally, with regard to the fear of ruining the case, one of the worst things you can ever tell a witness is that the entire case is riding on his testimony.
Even when it is true, pointing that out to a witness adds undue pressure and stress. Key witnesses already know how important their testimony is to the outcome of the case. If a witness brings it up himself, it is better to agree that his testimony is important, but then point out the other important components of the trial (including your own role as the attorney).
Also, if the witness is going to be subjected to a tough cross-examination, it is a good idea to make sure he knows, but it does not help him for you to keep harping on it. By mentioning it once, you will know the witness understands. If you keep reminding him, it will only add to his stress load, which becomes counterproductive. When you discuss the issue, remind him that he is not alone, that you will protect him from inappropriate questions, and that all he has to do is tell the truth.
It is easy to forget that testifying is a new, stressful experience for most witnesses. However, witness anxiety is only a bad thing when it interferes with the witness’s ability to communicate. Therefore, it is always worthwhile to understand your witness’s fears and concerns so you can minimize the extent to which those stressors will influence his testimony.
Brad Bradshaw, Ph.D., is a litigation consultant based in Nashville, Tennessee. Dr. Bradshaw helps attorneys prepare for arbitration and trial, anywhere in the country. For more information, please visit www.bradshawlitigation.com or call (615) 739-6553.