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Articles Table of Contents
A version of this article first appeared in Intellectual Property Today.
Comprehensive Witness Preparation:
Crucial for IP Cases
by Amy Singer, Ph.D.
Editor's Note: In the first article of this two-part series, published in the _________________ edition of Intellectual Property Today, Dr. Amy Singer discussed the importance of a comprehensive witness preparation program for IP cases, along with reasons why this vital trial planning component often gets shortchanged by trial attorneys. In this follow-up article Dr. Singer outlines valuable activities from the field of litigation research, along with time-tested techniques from traditional trial planning, that IP attorneys can use to optimize the effectiveness of their own preparation sessions with witnesses.
Competent witness preparation should be designed to help the witness: maximize his/her likability with the jurors; offer strong, effective, and relevant testimony; reduce nervousness while in deposition or on the stand; improve speaking style, along with poise and physical presence; and mentally organize and have readily available all necessary information and/or special technical knowledge.[1] Let's examine some practical methods IP attorneys can use to help witnesses achieve these goals.
Establishing witness likability - a key factor in any witness preparation program
Litigation research indicates that witness likability is more important to jurors than witness credibility.[2] Indeed, the credibility of expert witnesses in jury trials is often more dependant on likability than any other factor, including technical competence. Along this line jury trials are not about laws or motions or the impressive technical credentials of witnesses; instead, they concern people and the emotions they engender. How something is said by a witness during a jury trial is often as important as what he/she said. The greatest technical expert in the world cannot expect to positively influence jurors in an IP trial if he/she is also not a good communicator. If jurors like the witness they will move heaven and earth to make the conflicting evidence line up with that person's story; but if jurors dislike the witness their tendency will be to subconsciously discount what he/she says during court, along with any corresponding evidence. And it's tough to win a trial that way.
Jury simulations/focus groups: most reliable evaluators of witness likability and performance
Before trying to enhance witness effectiveness, it is useful to first objectively assess witnesses in terms of the positive or negative impressions they will make with jurors while testifying. The ideal way to determine if a witness is coming across in a likable manner with jurors is through jury simulations and jury focus groups. Such sessions can be extremely valuable, not only in helping the witness improve his/her likability and performance, but also in determining what information jurors will most want to hear about and consider relevant.
Organizing jury simulations/focus groups is not an art - it is a science, i.e., litigation research. This scientific field employs actuarial methods based on experimental design. Its product is the statistical analysis and interpretation of systematically collected scientific data concerning probable jury responses to selected stimuli. Nothing is intuited. This is why jury simulations/focus groups can provide a bona fide acid test regarding how jurors will relate to the witness during trial. This form of testing is far superior to the random gathering of colleagues and support staff often organized by trial attorneys to evaluate witness effectiveness. The off-the-cuff reactions of colleagues may differ substantially from how a jury will consider things.
Stimuli for jury simulations set up to gauge witness effectiveness are the individual witness; his/her testimony and demeanor; plus any supporting demonstrative evidence. All comments and opinions expressed by the surrogate jurors concerning the witness and his/her performance are scientifically evaluated and interpreted by a psychologist specializing in litigation research. This individual is professionally trained to decipher the deliberations of subjects in controlled psychological studies such as jury simulations/focus groups.
Jury simulations/focus groups can help the witness optimize his/her testimony[3] in order to achieve the widest possible level of acceptance with jurors during the actual trial. Scientific results achieved through this type of litigation research are presented as a series of "if-then" statements - "if the witness handles his/her testimony in this specific manner, then jury response will occur"; "if this demonstrative evidence is presented by the witness, then outcome will take place."
It is worthwhile to videotape the jury simulation/focus group sessions for playback by the witness and attorney later.[4] Split-screen technology can be used to clearly portray juror reactions to specific witness testimony concerning key points in contention.
What about eye contact with jurors?
A common complaint registered by jurors during post-verdict interviews is that many witnesses "are reluctant to look us in the eye." Effective communication on an individual or small group basis requires establishing proper eye contact between the parties involved. This is as true for witnesses and jurors in the courtroom as it is for people involved in any other small group social setting.
The demonstrates another excellent reason why scheduling witness preparation sessions with surrogate jurors is so useful. The witness can practice testifying directly to the jurors in order to come across later in the courtroom in the most natural and believable manner.
Along this line, it is always important to replicate the upcoming trial experience for the witness in the most authentic mode possible - e.g., utilizing surrogate jurors in a trial setting. Enabling the witness to practice testifying under these realistic conditions will help him/her reduce and/or eliminate problems that could surface later during actual testimony.
Another advantage: the witness is far more likely to accept a negative critique regarding his/her personal testimony style - and thus work hard to change it for the better - from surrogate jurors. These individuals are objective analysts who have no stake in the case one way or the other. Using surrogate jurors for this purpose can be particularly valuable with expert witnesses who come across in a smug and/or arrogant manner when testifying.
Witness evaluation forms
To deliver the most effective testimony the expert witness must be an excellent teacher, captivating performer, and powerful motivator. Surrogate jurors evaluate the witness according to these key criteria. Witnesses also are graded along the lines of poise, physical presence, and so on. Witness evaluation forms are commonly employed for this purpose. On the forms used at my firm we also ask surrogate jurors to detail specific other valuable information - for example, the strongest (and weakest) testimony provided, the topic(s) jurors would like to hear more about, the testimony jurors found most confusing, and so on.
This information - which establishes a reliable "book" on each witness - can then be used to spotlight areas of witness testimony and/or demeanor that need to be upgraded; and to help the attorney most effectively plan how to question the witness later in court.
The Opinionator
At my firm we sometimes utilize a sophisticated juror electronic device termed the "Opinionator" during witness effectiveness training. This apparatus instantly analyzes juror responses to witness testimony. It is linked to a computer that tabulates and analyzes the data (moment-to-moment juror responses), and then displays this information as an electronic overlay on top of the videotape of the witness testimony. The lawyer and witness can see precisely how the witness "grades out" regarding each discrete portion of his/her testimony - and then make any necessary adjustments.
Operant conditioning techniques
Since witness likability is so important, it is useful for the witness to actually see how he/she is coming across during the preparation sessions. Mirrors and video cameras enable the witness to "grade" his/her own performance. In this regard the mirror is excellent for instantaneous feedback; the video camera provides a method to carefully study witness demeanor and responses to particular questions, and to make the required corrections later.
Nervous witnesses are not strong witnesses
Speaking in front of others represents one of the strongest and most commonly expressed fears for a large majority of people. This anxiety can become infinitely more dehabilitating when it involves the super-aggressive, no-holds-barred give-and-take associated with cross-examination. Indeed, providing legal testimony in high stakes court cases is one of the most stressful activities imaginable - lay witnesses can turn into a bundle of nerves as a result.
Also it is not uncommon for some company engineers and technicians - individuals unaccustomed to the courtroom - to freeze up when required to take the stand during IP cases. It is crucial therefore that the IP attorney have some reliable methodology available to help such witnesses deal with their understandable fears of testifying in court; and to reduce nervousness on their part.
Witness nervousness is a major problem in trials because it works against witness likability. It is extremely difficult for the witness to present a positive image to jurors if he/she is excessively nervous. Witness nervousness also damages witness credibility. Jurors immediately begin to ask themselves the same question: What does the witness have to be so nervous about? This can have a negative impact because doubts about the witness by jurors often turn into indictments.
Helping a witness minimize his/her excessive nervousness often requires a deft professional touch. Specific exercises may need to be employed that are designed according to the person's individual psychological make-up; and in particular regarding how the particular witness deals with difficult confrontational situations such as cross-examination - i.e., with hostility, avoidance, passivity, and so on.
Generally a licensed psychologist is contracted to help the witness come to grips with his/her emasculating feelings of nervousness. Retaining such professional assistance can be invaluable in a high-stakes IP trial dispute with millions of dollars at stake; and where witness testimony and demeanor can be the deciding factors for jurors to reach a positive verdict.
Some useful psychological exercises to help reduce nervousness by witnesses include systematic desensitization (classic relaxation techniques are employed to help the witness successfully deal with anxiety-inducing stimuli associated with testifying in court); positive imagery (a series of positive reinforcement exercises in which the witness is taught to learn to feel comfortable testifying); and "psyching-up" strategy (the witness is provided with an easily retrievable methodology to actively visualize the opposing counsel during cross-examination as a frail and fallible human being, and not a dreaded Grand Inquisitor). Through such behavior modeling and role-playing techniques the witness can quickly learn to overcome anxiety and nervousness while testifying in court.
Attention-focusing
A common weakness most witnesses share is not paying close attention to the questions being asked, then providing uncalled-for answers that may negatively influence the jurors. Many witnesses often make the mistake of being far too responsive, even outright talkative, on the stand.[5]
Witnesses must be taught to: 1) listen intently to the questions being asked of them, and 2) neatly limit their answers only to those questions asked. Various operant conditioning techniques can be used to help witnesses attend closer to the questions, and to carefully confine their responses. For instance, the psychologist assisting the attorney during witness preparation sessions may make a loud buzzer sound every time a witness answers a question that was not asked, or goes overboard with his/her answer.
Another useful training exercise is to instruct the witness to slowly count out loud to three before answering a question. Once the witness has mastered this activity, he/she will then be asked to practice counting silently to three before answering. This period of silence provides the witness time to carefully think about and plan his/her answers. Plus, it permits the witness's lawyer time to raise objections to improper questions during cross-examination.
Frame-of-reference responses
Witnesses must learn that questioning by opposing counsel during deposition and trial is a mind game and a word game. Witnesses who understand the "rules" of such games will do better when providing testimony. Opposing counsel knows that if the witness can be tripped up on the stand so he/she appears to be lying, the jurors will begin to question the individual's credibility. Often it is not difficult for a clever interrogator to plan a goal-oriented and carefully directed conversation in order to make the person answering the questions appear not to be telling the truth.
The witness needs to realize that - during deposition and in the courtroom - he or she is the hen, and the opposing counsel is the fox out to get the eggs. The only way the witness can protect the eggs - that is, his/her testimony - is to carefully answer questions according to what he/she knows right now, remembers right now, is aware of right now, feels right now, or has been told right now.
This means that witnesses must learn how to answer questions strictly according to information they currently retain or remember - and that's it. In this context, "I can't recall" or "I don't have the necessary information to answer that question" may be completely valid answers. The witness needs to become versatile in framing his or her responses in this carefully controlled manner.
Preparing for cross-examination
It is often said that trials are won during direct examination and preserved during cross examination. It is therefore vital to adequately prepare the witness for cross-examination.[6] Failure to do so can make the witness an easy target for opposing counsel later during trial. It is crucial that the attorney anticipate the full line of questioning that will be used to impeach the witness during cross, along with specific questions that are liable to come up. Once these are identified the attorney can then assist the witness in developing the strongest possible responses.
An example of how this can be adroitly handled is supplied by Arnold B. Silverman, chairperson of the IP group at Eckert Seamans Cherin & Mellott in Pittsburgh. "We were involved in a trademark case where two retailers in similar businesses were both using the same name," Mr. Silverman relates. "We sued the other company for infringement. Part of the problem was that our client's competitor was involved in a saturation advertising campaign in which they were selling product X for $89.95. This was an extremely low price that our client could not possibly meet for the same product.
"I anticipated that the other side would try to score points during cross by pursuing the theory that any confusion caused by the same-name advertising would result in increased customer traffic - and thus more business - for our client. The implication would be: 'What did our client have to complain about?' We developed what we felt was a strong response to this line of questioning during our preparation sessions. If asked the question, the witness would respond along this line: failure to meet the advertised low price was not creating new business at all, but instead angry customers who promptly left the store to buy the item from the competitor.
"During trial the question was posed exactly as we anticipated it, and was handled with the 'angry customers' response. This worked very effectively because opposing counsel immediately moved on to another line of questioning."
Scoring points during cross
While cross-examination represents a dangerous minefield the witness must successfully navigate, it can also represent a gold mine in which the alert witness can immediately strike pay dirt. For example, the witness may be able to discuss state-of-mind testimony during a poorly directed cross that would be considered flagrant hearsay during direct examination. To illustrate:
Q: On what do you base your conclusion that the product manager intended to copy your new invention?
A: "I understand that this is what he told his development staff he planned to do."
This type of quick-witted riposte requires an attentive witness who fully understands the case and all of its particulars, including strategy, tactics, the sequence of evidence presentation, and so on. The IP attorney must therefore ensure that key witnesses are completely apprised of the case and how their individual testimony fits into the overall trial plan.
Make witness preparations a priority
A bad witness can kill an IP case, either during deposition or trial. It is vital therefore that the lawyer take the time necessary to comprehensively prepare his/her witnesses so they can 1) create the most positive impression with jurors, and 2) provide the most favorable testimony. To successfully accomplish these vital goals, the lawyer should consider witness preparations not only from a legal but also from a psychological (read: human) perspective. This is crucial with lay witnesses in IP cases; but it certainly also applies for expert witnesses. Indeed, many litigators have learned to their dismay that expert witnesses can inexplicably (and unexpectedly) blow up on the stand like cheap cigars![7]
To achieve success in the courtroom it is crucial to know precisely how your witnesses will perform prior to trial; and more to the point, how jurors will evaluate their performances. Employing jury simulations/focus groups during witness preparation sessions is the most efficient way to accurately gauge a witness's impact on jurors. If weaknesses are discovered, specific cognitive conditioning exercises, along with other time-tested witness preparation techniques, can then be used to help eliminate these problems. It is only through such vigilant preparation that the IP attorney can properly arm his/her witnesses, both lay and expert, so they execute at the optimum level during deposition and/or trial.
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Amy Singer, Ph.D., trial consultant, is a nationally recognized authority in the field of litigation psychology, and an expert regarding the psychology of jurors and juries and the dynamics of a jury's deliberations and decision-making processes. Dr. Singer is the founder and president of Trial Consultants Inc. (jury research and trial preparation), Litigation Consultants Inc. (a litigation think tank) and the Institute for Settlement Sciences Inc. (settlement intelligence services), all headquartered in Fort Lauderdale, Florida. Telephone: (954) 370-1973. E-Mail: JuryDoctor@aol.com.