Jason Galbraith-Marten KC offers tips on helping witnesses get ready to give evidence
This article was first published in Litigation Funding magazine, see https://www.lawgazette.co.uk/litigation-funding
‘You can’t handle the truth!’ Even after 30 years, this line from A Few Good Men remains one of the five most famous words in Jack Nicholson’s filmography and one of the most memorable courtroom scenes in film history. It also provides an example – albeit a heavily dramatised one – of the risks associated with putting a witness on the stand, in an environment and conversation over which they have almost no control.
For most witnesses, the experience of being cross-examined in court (or in an arbitration) will be unfamiliar, tense and anxiety inducing. The chances of anyone in this situation not performing well are high.
DIFFICULTIES WITH WITNESSES
Litigators have seen risky traits in witnesses before, and these can be damaging to the merits of a case: for example, there is the key witness who becomes argumentative, comes across as over-confident and arrogant, is unable to answer simple and direct questions, or gives answers with overly defensive body language. At the other end of the spectrum are those witnesses who are too timid and nervous, prone to agreeing with every point put to them in an apparent attempt to shorten the pain of cross-examination.
Yet the outcome of even the biggest commercial cases can turn on witness evidence. The case of Berezovsky v Abramovich – in which Boris Berezovsky sued Roman Abramovich for more than US$5.6bn – was largely determined by the judge’s assessment of how the two parties had performed when giving evidence at trial.
Risk is inherent in litigation, and a crucial part of the lawyer’s job is properly to quantify and, to the extent possible, manage that risk. Witness evidence involves risk: how will a witness perform when giving evidence and under cross examination?
THE TRUST EQUATION
In 2000, Harvard professors David H. Maister, Charles H. Green, and Robert M. Galford published a book called The Trusted Advisor. In it, they detail research that they had conducted, which looked at how businesses go about choosing their legal service providers.
It transpired that it was possible to create a mathematical equation that could accurately represent the factors involved in this decision- making process: credibility + reliability + intimacy, divided by self- interest. They called this ‘the trust equation’ and it rapidly became an influential model used within business development training.
The theory is that businesses rate potential lawyers with a metaphorical ‘score’ based on whether: they appear to know what they are talking about (credibility); they do what they say they will (reliability); and they understand the needs and interests of the business (intimacy). Once added together, this score is then divided by a number representing the extent to which the lawyers were perceived to be acting in their own interest. Dividing the first figure by the second indicates how much the business is willing to trust the lawyers as advisers, and hence who they will engage.
When the trust equation is applied to personal communications and the courtroom environment, it is easier to understand how a witness must communicate to gain the trust of a judge (or jury). It is likely (and indeed desirable) that the witness is going to score low in terms of how well they know the judge and his needs. It is also inevitable that they are going to be awarded a high score by the judge when deciding how much self-interest the witness may have. The only variables which a witness’s performance will feed into are credibility and reliability, which is why it is no coincidence that we hear these terms used so frequently when describing witness evidence.
DE-RISKING – PREPARING WITNESSES
This is often perceived as an element of risk that the legal team can do little or nothing to control. Witnesses, even key witnesses, are often sent in to give their evidence with scant attempt to prepare them for the real experience of giving evidence.
They may have had a discussion with their solicitor, or perhaps even a conference with counsel, explaining the im- portance of listening carefully to and answering the question, but they have not truly experienced what it feels like to be on the witness stand and to be subjected to cross examination.
For this reason, it is crucial to be aware of how a witness is likely to communicate, rather than just what they will communicate.
THE PERMISSIBLE LIMITS
In the UK, it is not permissible to rehearse a witness’s evidence or to coach a witness in their evidence. The Bar Code of Conduct provides that a barrister cannot rehearse, practice or coach a witness in relation to their evidence. Although the Solicitors Regulation Authority Handbook does not contain any express prohibition, it is implicit in the Principles; for example, solicitors must act with integrity and uphold the rule of law.
The leading case on what constitutes permissible witness training is R v Momodou, in which the judge commented that the witness should give their own evidence, so far as practicable uninfluenced by what anyone else has said, whether in formal discussions or informal conversations ([2005] EWCA Crim 177). Although it is a criminal case, the principles
set out in it have been referred to without disapproval in a civil case (Ultraframe v Fielding [2005] EWHC 1638 (Ch)). The Bar Standards Board has advised that, until there is an authority on these matters in relation to civil proceedings, it would be prudent to proceed on the basis that the general principles set out in Momodou also apply to civil proceedings.
THE PSYCHOLOGY OF GIVING EVIDENCE
Lawyers need to give witnesses the experience of giving evidence, but without crossing their professional boundaries. Witnesses who are confident, focused and calm are those that perform at their best. The two most common psychological impacts of giving evidence are:
Pre-trial pressure
If a witness understands and manages their ‘inner experience’ (their thoughts and emotions) it can help them to navigate and dictate their ‘outer experience’ (what is going on around them, which is not within their control). If they let their outer experience dictate how they think and feel, it will impact how they behave, and this in all likelihood will harm their case. While all witnesses have natural strengths and weaknesses, building self-awareness of how they may react under pressure helps them manage their response to pressure. Equally, shifting their focus onto the things they can control - and importantly, accepting the things they cannot control - will help them to navigate their outer experience and manage anxiety. The one thing witnesses can control when being cross-examined is how they answer the question.
The heat of cross-examination
Performing under pressure is all about focus – staying in the moment, listening to, and answering the question. The fact that there is so much at stake, along with the formality and unfamiliarity of the physical surroundings and the barrage of questions, means that it is not easy.
While each witness’ outer response will be different, they will all have an internal, physiological reaction. Science tells us that when one’s heart rate varies in a chaotic way, it moves the brain towards its ‘flight, fright or freeze’ mode, and we do not think as clearly. Heart rate variability provides an insight into what one is feeling. And it is feelings that control thinking, which in turn controls behaviour – how one communicates under pressure.
COMMUNICATING UNDER PRESSURE
Remaining calm: this is done by being focused, staying in the moment and ignoring distractions. The more a witness is conscious of the state they are in and the impact it is having, the more they can take that split second to compose themselves and choose their response.
Breathing: this is both a voluntary and involuntary behaviour. If a witness chooses to breathe slower and deeper, from the diaphragm, in and out through the nose (and out for slightly longer than in), their heart rate variability takes on a more regular pattern and moves their brain towards its calming ‘rest and digest’ mode.
Tactics for eliminating hostility: the work of William Ury provides witnesses with a useful framework for eliminating hostility: give oneself time, don’t make a decision on the spot. Step to the side, avoid being in conflict; acknowledge, emphasise and highlight things they agree with. Use ‘and’ not ‘but’.
Non-verbal communication: where a witness’ words are not congruent with their body language or paralinguistics, people tend to put less focus on the words. Ensuring good posture assists breathing and helps to remain calm and reduce hostility.
Preparing witnesses helps reduce the stress and anxiety associated with being cross-examined, so they can be more focused and answer more accurately and honestly. The point is not to teach them how to withhold evidence or manipulate answers, nor is it to change the facts or the evidence. Rather, 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, credible and useful to the judge and jury.
While witness preparation will not guarantee a successful outcome, it can significantly improve performance and therefore reduce an element of litigation risk. No lawyer goes into a case without being completely prepared, and neither should their witnesses.
