IN CONVERSATION: Leslie Ellis, a Director Of DecisionQuest, a US litigation consulting firm

Leslie Ellis has a PhD in Social Psychology and has spent many years advising American law firms on the psychological aspects of the litigation process, including the training and evaluating of witnesses. Here she sheds some intriguing light on the contrasts between witness training in the US and the UK.

At first glance there are some astonishing differences between witness training in the US and the UK. Perhaps most critically, lawyers and witness trainers in the US are allowed to review the witness’s actual testimony with the witness in advance of the trial, something that is strictly forbidden in the UK. The trainer is allowed to know everything about the case and will also read or watch any witness interviews that have been produced.

Leslie says: “When I meet with a witness I will learn as much as I can about the case so I know what the issues are, what the claims or charges are, what the defences are, and what the witness’s particular role is in the case. It is not only allowed, it is expected.”

This radically different approach mirrors the wider approach to litigation advice in the US, where a whole industry has grown up around helping lawyers understand the mindset of the judges and juries they deal with.

Leslie explains: “My role is to help lawyers understand cognitively and socially how jurors or judges evaluate witnesses and to help them understand the psychology of what makes witnesses credible, persuasive and believable. Lawyers tend to focus on the evidence - my expertise is the psychology of how that evidence is going to be received and used. We provide another perspective on the case.”

Indeed to help lawyers get a better idea of how well a witness will be received by a jury, Leslie and her team will sometimes conduct mock trials using the actual testimonies to be given in trial.

She says: “We go to the area where the case will be tried and bring in people who are demographically matched to the area and meet the jury eligibility requirements. Our clients present parts of the case to these mock jurors, and we have someone play the other side. We get feedback from our mock jurors on what they thought the strengths and weaknesses of each side’s case were, so that our clients can see whether their case is as good as they thought it was.”

Leslie and her team are then able to give the client recommendations on how to present their evidence more effectively.

She says that lots of seemingly insignificant elements can make a witness more or less believable to a jury, such as their demeanour, tone of voice, and how directly they answer questions.

She says: “If you sound defensive and have lots of buts and caveats, that is very different to if you answer the question in a clear, direct and straightforward way. You are saying exactly the same thing but the way you answer a question makes a big difference to whether a judge or jury believes you or not.”

The idea of witness training has been around a lot longer in the US than the UK, dating back to the 1970s, and in that time much empirical research has been conducted on how judges and juries perceive and evaluate witnesses. Witness training is commonly used in trials there and is employed in almost all high stakes commercial litigation.

Leslie says: “Witness training in the US has become much more normalised because people have found it to be effective. If someone is not witness trained, they may say things they don’t mean, or in ways that aren’t understandable, perhaps because they are using language and terms that people are not used to, or they are using convoluted ways of answering questions.”

Indeed she argues that witness training can actually help a witness tell the truth. She says: “If you have got a witness who is really nervous or an executive who is very uncomfortable about having to talk about his company publicly, they will often say things that are not true - not on purpose but because they are so unsettled. It is very stressful and difficult having to testify and so a witness may not be as truthful and honest as they can be because they are distracted by the setting and their own anxiety. When you are really stressed out and someone is pounding you with a bunch of questions, your brain can’t keep up. Training helps to take some of the stress and anxiety out of the situation so witnesses can be more focused and answer more accurately and honestly.”

Despite the two very different approaches and restrictions to witness training in the UK and the US, however, reassuringly it seems that they both lead to the same conclusion and agree on one crucial thing. This is that the most effective way for a witness to give evidence is to speak as openly and honestly as possible.

Leslie says: “Most attorneys who try cases have learned that the worst thing you can do for a witness is give them a lot of instruction on how or how not to answer a question, or what would be helpful or not helpful for the case. If you give a witness this big long checklist of do’s and don’ts, they will be so nervous that they can’t focus.”

She adds: “The point of witness training is not to teach the witness how to withhold evidence or manipulate answers, and it is not to change the facts or the evidence, it is to help a witness say what they need to say, whether it is good or bad, in a way that makes it more effective, more credible and more useful to the judge and jury.”

It is vital never to underestimate the people who are actually listening to the testimony, she says: “Jurors are very good at sniffing out someone who is trying not to tell the truth. They are always on the lookout to make sure that they are getting straight answers. So the more straightforward, open, direct and sincere a witness is, the more credible they are going to seem, and the more likely it is that their testimony is going to have an impact on the outcome. If a witness is perceived as evasive or not truthful, the judge or the jury will just toss their testimony out of the window.”

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