Women and WP/Depositions

Intuitive, Nurturing & Similar Valuable Innate Psychological Traits
Give Female Attorneys the Edge in Key Trial/Case Preparation Areas

Trial is ritualized combat, a fiercely fought intellectual, emotional, and psychological battle with the highest, sometimes even life-and-death, stakes; it offers clear-cut winners and often pitiable losers. If trial is the ultimate mano y mano contest, where does this leave women lawyers? Some would contend that women, who almost always are not socialized to be aggressive, are operating out of their league in the courtroom. However a recent study of women law school students, published in the University of Pennsylvania Law Review, [1] indicates this perception may not be as accurate as some individuals believe.

The Penn study reports that women law school students who are successful in their studies "train" themselves to be more aggressive in order to compete effectively with the men in all areas of their legal education, including the mock courtroom. But this capability of aspiring professional women to transform their inner natures according to the exigencies (and opportunities) of modern life should come as no surprise. It is in keeping with the strong movement by women in recent years to enthusiastically engage in formerly all-male pursuits, e.g., women in combat; women as athletes, including professional boxers; women as fighter pilots; women as police officers, and numerous similar examples throughout society and around the world. It truly is no longer a man's world.

Women's psychological/cultural traits well suited for witness depositions and witness preparations

While most women trial lawyers have successfully taught themselves, of necessity, to become more aggressive in the courtroom, certain aspects of women's feminine natures offer distinct advantages over male lawyers regarding two key areas of the trial planning process - i.e., witness depositions and witness preparations. Indeed, when it comes to these vital components of trial preparations, most women lawyers are more naturally suited and better psychologically inclined to do a superior job than their male peers.

This is due largely to two key traits that are strongly associated with women-i.e., their innate ability to be perceptive, sensitive, and intuitive (women's famous intuition), along with their basic nurturing, caring, and empathetic sensibilities. Other factors, including women's marked verbal strengths as communicators (including their second-nature abilities as easy conversationalists) also provide them with a powerful edge over most male lawyers regarding witness depositions/preparations, where clear and forthright communication is all. Finally effective witness preparations involves a certain degree of subtle manipulation, and many women, socialized from their earliest days not to be competitive, have learned of necessity to manipulate others to attain desired goals.

And how do men measure up according to these criteria? While women are by nature nurturing and empathetic, traits that are useful in helping witnesses feel at ease during depositions and witness preparations, men are instead competitive and attempt to dominate conversations. This primal tendency by male lawyers can quickly turn an uneasy witness off. Further, men emphasize talking during conversations and tend to interrupt more, while women emphasize active listening, essential to effective deposition-taking. The tendency of many men is to use the communications process to impel, debate, and/or control,[2] while most women communicate to support and share. Which approach do you think witnesses will consider more receptive, and thus will prove more effective during witness depositions and preparations? Clearly, the latter approach works best.

This article will address these and similar issues with the following key proviso clearly stated and understood: there are countless male attorneys who are highly intuitive, sensitive, and empathetic; just as there are many female attorneys who are oblivious to the people and situations around them, and who are emotionally cold and distant. The information that follows concerns psychological and cultural tendencies as they broadly relate to, and differentiate between, women and men; and how these tendencies affect attorneys, both men and women, in terms of taking witness depositions and preparing witnesses for trial.

While it is true that intuition is a shared quality of both men and women, this valuable attribute is often more finely developed in women than men. This may be due, in part, to the fact that women, brought up to be more retiring and acquiescent than men, have had to learn to pick up clues and read tell-tale signs in social and other situations in order to survive. And of course, women, in their biological roles as mothers, are provided with a high degree of sensitivity, awareness, and intuitive insight, crucial to the safety and well-being of their helpless and needy offspring.[3]

To more fully understand these and similar contrasts between men and women, let's take a brief look at how most women are socialized and acculturated as young girls, and compare this with what most men experienced when they were growing up. We'll also discuss some other common female vs. male psychological/emotional tendencies, along with related socialization factors. We will then consider how these varying factors apply to such important trial planning activities as witness preparations and witness depositions.

Remember playground games when you were a child? For boys, there were "king-of-the-hill," "kill-the-man," "cowboys and Indians," "war," and other similar loud, raucous, and always highly competitive sports and contests. The games varied but the goal was always the same: physical dominance, in one form or another, by one boy, or a group of boys, over the others. Often the least powerful boys would end up at the bottom of the pile, their clothes torn, their faces bloody, and their feelings humiliated. Boys too meek or otherwise unwilling or unable to participate in such "games" were taunted as "sissies" and advised to go play with the girls.

And what were the girls doing while the boys were running around, screaming and yelling, and beating each other up? Often, they could be found in a quiet corner of the playground, doing little more than sitting in intimate circles of two and three, speaking calmly with each other.[4]

For girls (and women), the communications process (most always through intimate conversations) is of the highest consequence. Conversations between and among females, according to author Deborah Tannen,[5] are, "negotiations for closeness" in which women attempt to "seek and give confirmation and support and to reach consensus." Dr. Tannen points out, and most sociologists and psychologists agree, that a primary focus most women share concerns intimacy - i.e., we are close and the same. Most men care less for intimacy, however, than they do for independence, i.e., we are separate and different. It is for this and similar reasons that women often gravitate to the professions of therapist and counselor, where their basic instincts of empathy and understanding are in perfect harmony with their day-to-day professional responsibilities. And women's natural gifts of empathy and understanding are extremely valuable when dealing with witnesses, who often are highly nervous and uncomfortable regarding their upcoming court appearance, along with being emotionally stressed out as a result of the litigation matter(s) at hand.

Empathy is vital to putting the witness at ease and promoting open and honest communication.[6] Once this vital communication line is established between attorney and witness, both can begin to work towards constructing the most credible possible narrative, the basic key to courtroom success.

The great psychologist and psychiatrist Carl Jung said this of intuition: "Intuition as I see it is one of the basic functions of the psyche, namely perception of the possibilities inherent in a situation."[7] Often such perception is essential to effective witness deposition and preparation. I recall a witness who was driving his attorneys (all male) crazy because he simply could not take the witness preparation process seriously, even though he was the defendant in a high profile and potentially hugely expensive civil rights defamation case. Many hours of time were lost while the attorneys tried unsuccessfully to get the witness to focus on his testimony. Instead he would crack jokes, make faces, get up and roam around the room, and otherwise act inappropriately. The attorneys were furious at his behavior, privately labeling him a "weird duck" and "different bird." They had absolutely no idea regarding how to deal with him.

Finally, one of my assistants, a woman psychologist, asked to meet with the attorneys outside of the witness's hearing. She perceived that the witness had, what she termed, a "Larry Flynt"[8] personality, i.e., the mind-set of an individual who had been able to successfully play the game according to his own rules, even though it sometimes got him in trouble; while disregarding everyone else's rules because he didn't think they applied to him.

She explained that perhaps the best way to get the witness to stop wasting time and begin to take the witness preparations process seriously would be to help him better understand his own personality; acknowledge that the highly individualistic rules he had applied to his own successful life were far different from the rules and procedures of the staid and somber courtroom; and, most importantly, to realize that unless he quickly learned to play by these other rules, he would surely lose his case.

The attorneys agreed and my assistant proceeded to candidly speak with the witness along these lines. Once she finished, the attorneys went back to work with the witness, who seemed to have suddenly undergone a magical transformation, now presenting himself as almost a textbook model of mature, intelligent, credible testimony. The witness responded in a similar polished fashion during the actual trial and easily won the case. The outcome would have been far different, however, if my female assistant had not intuitively grasped the peculiar personality issue at stake, along with a tactful way to deal with it successfully.

In another case, an elderly woman was suing a chemical manufacturer for the wrongful death of her husband. An American Indian, the woman was very stoic and seemed unable to show any emotion during her testimony. The attorneys, again all male, were frustrated because they felt her flat affect would negatively affect the jury towards her. I was asked to assist. I sensed that the women's emotions were deeply felt but well protected and would need to be released. I asked the woman to pretend that her husband was in the room with us, and also to pretend that she would be speaking to him when answering the attorney's questions. This technique made all the difference. The woman, her eyes streaming tears, first began to sob, then cry heavily, over the loss of her beloved husband, exhibiting heartfelt emotions that had been pent-up since his death. Once the emotional dam burst, there was no stopping it, and the woman testified in a similar moving fashion on the witness stand. She won her case handily.

There is no question that intuition is deeply tied to the emotions. Women, who normally are in closer touch with their emotional side than are men, are perforce often more intuitive as well.[9] This intuitive grasp can make all the difference with reluctant, nervous, and frightened witnesses during witness depositions/preparations.

Another value regarding intuition during the witness depositions/preparations phase has to do with smoking out witnesses who plan to perjure themselves in court. Becoming more of a problem in courts throughout America daily,[10] lying witnesses strike at the very heart of our judicial system. Further, attorneys have a professional responsibility to ensure that their clients provide candid testimony, and indeed are strictly required by numerous jurisdictions to rectify the consequences of a client's perjury. Lying testimony by a key witness, once uncovered, can drive a stake through the heart of the best case. The attorney who is unable to sense a lying witness may see his or her case blow up at any time, without ever knowing there was a problem. Further, an attorney who is able to sense a lying opposing witness during deposition is operating with a major advantage. Here surely is a situation where women's intuition, on the part of perceptive female attorneys being able to accurately "read" witnesses, can pay off in spades![11]

Another serious problem male attorneys often face during witness preparations has to do with their primal competitive natures. When it comes to basic conversational styles (read: communication between attorney and witness), most men want to "win," while most women want to "share."

Sometimes the attempt by some male attorneys to dominate during their interactions with witnesses is overt and obvious; and sometimes it is subtle, and can only be discerned through gestures, tone of voice, eye contact (or, more often, lack thereof), facial expressions, body language, and similar signs. But this desire to emerge the winner in any and all interactions with their witnesses is a prevailing factor with some male attorneys; and as such, is highly counter-productive during witness depositions/preparations. This negative dynamic creates a tension with both male and female witnesses; and it works strongly against the witness and attorney moving together towards the same vital communication goal, i.e., developing the most credible and compelling trial story for court.[12]

I recall a client/witness, a well-known industrialist with a strong "Napoleonic" complex, who was constantly butting heads with his male attorneys during witness preparations regarding a tax evasion case in which he was involved. Since witness preparations was an activity the attorneys were responsible to plan and control, they felt compelled to try to "win" these encounters with the witness. But the witness's basic drive was to always be, or to emerge, on top. Consequently little of value was accomplished during the witness sessions.

I was called in to assist. I quickly realized that the witness, a small man, was compensating by acting "big" with those around him, and had a overriding compulsion to clearly dominate any interpersonal situation. As a woman, I had a major advantage over the male attorneys because it was likely that the witness would not feel threatened by me. This proved to be the case. Nevertheless, I made sure to let the witness "win" on various conversational "issues," e.g., allowing him to establish the pace and tone of the conversation, immediately assuming a respectful silence during his regular (and rude) interruptions, nodding agreeably in response to his command-type language, and so on. Once the witness felt secure that he was the clear "winner" of our social interaction, however, he relaxed and began to open up to, and to accept, the witness preparations process.[13]

Today, in our cynical anti-lawyer era, witness testimony and demeanor are the crucial factors for courtroom success.[14] The tendency of skeptical jurors is to automatically tune out lawyer oratory - they want to hear what the witnesses have to say. This is why the witness who is poorly prepared to speak in court is a dangerous time bomb, able to single-handedly blow up the case with one ill-considered remark or unnecessary response. It is critical therefore that witnesses be properly prepared before taking the stand.

Attorneys, both men and women, must begin to place a far stronger emphasis on witness preparations than is the current standard. For many lawyers, witness preparations seems to be regarded as the "Black Hole" of trial work, i.e., a dreaded eventuality to be avoided until the last minute, and then skirted around as much as possible. This attitude of avoidance can only lead to poorly-prepared witnesses and potentially serious problems in the courtroom. Witness preparations should be made a much more important priority by attorneys for today's court cases.

Witness preparations should help the witness: improve likability with the jurors (jury research shows that witness likability is a more important factor than witness credibility); offer clear, convincing and relevant testimony; improve speaking style and physical poise and presence; mentally organize and have easily available all necessary information; and help reduce nervousness. It should prepare the witness to be ready for, and understand how to deal with, opposing counsel's efforts to trip him or her up on the stand. Additionally, in the case of expert witnesses, witness preparations should help demonstrate the expert's superior knowledge and expertise. Let's take a brief look at one key area of witness preparations - helping the witness reduce his or her nervousness so as to be able to be convincing and compelling on the stand.

Providing testimony during a trial is truly one of life's most stressful experiences. The witness may be emotionally and/or physically distraught due to the cause of the litigation complaint; uncomfortable in the unfamiliar and foreboding courtroom environment; anxious regarding all aspects of providing testimony, but in particular, of cross-examination; and deeply worried that he or she will not prevail in court. Under these circumstances, it is natural that many witnesses will exhibit a certain amount of nervous behavior while testifying.

Sometimes however this nervousness can be so dehabilitating that the witness may not appear credible to jurors. One of the primary rules of juror/jury psychology is that fears and doubts in the jurors' minds turn into indictments. If the jurors have reason to doubt a witness's testimony ("What does the witness have to be so nervous about?"), they will often go the other way with their verdict. It is critical therefore that steps be taken during the witness preparations phase to help nervous witnesses come to grips with their fears; and to find a way to testify in a strong and convincing fashion.

Numerous techniques exist to help witnesses overcome their fear of testifying in court. They are based on the all-important therapeutic approach to witness preparations. Attorneys often fail to realize it, but providing testimony in court regarding a loss can be a deeply charged cathartic experience for many witnesses,, and should be treated as such. This means that for clients who have suffered the loss of a loved one, of health, of physical capability, or something equally serious, a professional therapeutic approach should always be included as part of the overall witness preparation effort. This also can be useful in many other ways, including helping get those ever-present skeletons out of the closet during witness preparations so as to minimize the damage they can do later. Normally a trained psychologist or similar therapeutic specialist with experience in trial consulting will be asked to assist the witness along these lines, supplying an invaluable "psychological edge" to the case.

Systematic desensitization - Some witnesses turn into bundles of nerves at the prospect of testifying in court. They find it impossible to organize their thoughts; they stammer, stutter, and sigh through their testimony; they sweat and shake on the stand, and otherwise come across as emotional basket-cases while providing testimony. Classic relaxation techniques - used to help people overcome their fears of flying, public speaking, and so on - can help highly nervous witnesses find a way to deal with their anxieties. The witness first learns to deal with the least anxiety-producing scenarios, e.g., entering the courtroom or facing the judge and jury; and then the more difficult situations such as providing testimony during cross-examination.

Positive imagery - The witness is encouraged to picture highly positive responses as he or she will be speaking in court- - "Imagine the jurors smiling and clapping in approval as you respond to all questions asked"; "Envision the judge cheering as you speak." The witness is shown how to immediately summon up this supportive cognitive methodology whenever he or she must take the stand.

"Psyching-up" strategy - Witnesses who suffer from an excessive fear of cross-examination are encouraged to imagine opposing counsel asking his or her questions while being pursued around the room by a flock of angry, snapping ducks; while sitting on the toilet; while wearing a clown costume; and equally goofy scenarios. It is impossible to fear someone if you can laugh at them. The witness learns to imagine opposing counsel not as a Grand Inquisitor but as a frail fallible and even foolish human being.[15] This imaginative mental exercise can help the witness free himself or herself of the emasculating intimidation factor associated with opposing counsel.

Emotional arousal - Many witnesses, such as the elderly female American Indian witness referred to earlier, are unable to show emotion when testifying in court, despite suffering a significant loss - of a loved one, of good health, or something similar. It is important jurors be able to empathize with a client's loss, but this can be difficult to achieve if the client has an excessively flat affect. Intensive clinical counseling techniques often are the only answer to help such witnesses achieve emotional catharsis and thus to be able to exhibit their true feelings.

Witness preparations should be conducted shortly before the deposition is to take place, and then again immediately before trial. Various operant conditioning techniques employing mirrors and video cameras should be used to help the witness see how he or she is coming across while testifying. It is always extremely useful to have the witness practice his or her testimony in a room viewed by surrogate jurors involved in jury simulations of the case. One-way mirrors can be used to accomplish this best.

The witness will be graded by the jurors according to specific criteria (credibility, likability relevance of testimony, and so on). The witness will thus receive highly directed and valuable feedback regarding weak aspects of his or her testimony, along with a chance to improve these areas prior to court. Another valuable benefit: surrogate jurors can help the attorney and the witness determine what information actual jurors will most want to hear about, what seems least important, what areas of testimony are most confusing, and so on.

It has been said that an easily-understood, workable falsehood is often more useful than an uncomfortable, complex truth. One such example: women attorneys are at a gender disadvantage in court. The fact is that female attorneys who have been able to find the gumption and grit to successfully weather the rigors of law school have almost surely taught themselves to compete just as effectively as the men, and very likely more so.[16] We have discussed how women's natural gifts of empathy, understanding, sensitivity, and intuition can be so invaluable when it comes to the essential trial preparation activities of witness depositions and witness preparations. But also consider how women's superior organizational skills - essential to juggling responsibilities concerning their mates, children, homes, jobs, shopping, and so on - can be helpful in organizing complex commercial and similar cases; how women's sensitivity and intuitive skills can be used to successfully spot and de-select problem jurors during voir dire; how women's strong verbal and communicative abilities can be employed to craft and deliver powerful opening statements and closing arguments; how women's natural social skills can aid in creating strong bonds with witnesses, so useful during direct examination; and finally, how women's newly learned capabilities to be aggressive when necessary to achieve desired goals can aid in the cross-examination of witnesses. Women attorneys at a disadvantage in the court room? As our English sisters across the Atlantic might put it: "Not bloody likely!"

[2] Some male lawyers' burning need to control every minute aspect of their case often puts them at a disadvantage psychologically when it comes to witness preparations. Witnesses, being people, are not always subject to control and direction; they often balk if they feel coerced during the witness preparations process. As a result, witness preparations can become a highly uncomfortable "spitting contest" between the lawyer and the witness. The tendency under these disagreeable circumstances is for the lawyer to put off witness preparations until the very last minute, which can prove to be a disaster at trial time. This is far less of a problem, however, for women attorneys who normally do not get as hung up on "control" issues as do men.

[3] New scientific research indicates that women's intuition may, in fact, be inherited from the father, not the mother. This finding is a result of a recent study of girls with Turner's syndrome, a relatively uncommon sex-chromosome disorder among human females, which may include among its symptoms kidney and heart malformations, and also moderate to severe mental retardation. Girls with Turner's syndrome often are inept and insensitive in social situations, manifesting an almost total lack of intuitive skills. We know that infant males get one X chromosome from their mothers, and one Y chromosome from their fathers. Normal infant females get two X chromosomes, one from each parent; but girls with Turner's syndrome have only one complete X chromosome, received from either the father or the mother. Research shows that girls with Turner's syndrome who received the X chromosome from the mother were often far more socially inept, insensitive, and non-intuitive, than were the girls with Turner's syndrome who received their X chromosome from the father. (Note: The X chromosome apparently didn't help the fathers become more intuitive because they received them from their mothers.)

[6] The importance of being empathetic and sensitive to the needs of others cannot be stressed enough when it comes to witness preparations and depositions. In the latter case, I know of male attorneys who have blown otherwise perfectly good depositions because they failed to pay attention to the needs of, and were not considerate to, the court reporter taking notes. Oblivious (i.e., not empathetic) to the court reporter, they found out after depositions were concluded that testimony and objections had not been transcribed correctly. The court reporter did the best job that he or she could, but simply couldn't keep up with hurried, poorly enunciated and/or argumentative testimony and lawyer commentary. I have never, however, heard of this problem occurring with women attorneys.

[7] Intuition is a vital psychological aspect according to Jung, who distinguished people according to four primary functions of the mind--thinking, feeling, sensation, and intuition--one or more of which he believed predominated in any given person.

[9] Further proof that women rely more on intuition than do men was quantified in a recent (1994) study conducted by The National Foundation for Women Business Owners. Sampling 127 women and men business owners in six cities across the country, the study found that: 1) more than half (53 percent) of women business owners emphasize intuitive or "right-brain thinking (i.e., relying more on sensitivity); while 2) seven out of ten (71 percent) of men business owners emphasize logical or "left-brain" thinking (i.e., relying more on methodical and procedural analysis).

[11] Putting intuition aside, some male attorneys are simply oblivious, either partially or completely, to the needs of their witnesses; and, in particular, to their female witnesses. For example, many women who must testify in court have a deep fear of the cross-examination process. Socialized to be genteel and "lady-like," many women have no idea how to respond to a combative cross-examination. Many men attorneys fail to understand that female witnesses need to be provided with available tactics they can employ during cross-examination so as not be overwhelmed in the courtroom. On the other hand, women attorneys, who often have had to teach themselves to become aggressive for trial work, many times will be more sensitive to their female witnesses' need for some reliable and ready stratagems they can use to deal with conflict during cross-examinations.

[12] The tendency by some male attorneys to try to dominate conversations during sessions with witnesses can create major problems during depositions. Since two opposing attorneys share the same need to "win" during the deposition, but only one can, the deposition will often revert to witness testimony which is interrupted regularly by rude commentary (and even contumely) by and between the opposing lawyers. Nothing can be gained from such a display of verbal animosity. Indeed, cases which might have settled amicably almost always never do when the lawyers are so overtly hostile to one another. My experience indicates that this scenario seldom occurs however when two women attorneys are on opposite sides during a deposition.

[13] The problem of male competition/gamesmanship can become particularly acute when it comes to a male attorney preparing a male business executive or other corporate powerhouse to provide testimony in court. CEOs and senior executives, which mostly are men, often are reluctant to take counsel from those they consider inferior in stature, position, and/or prestige. Further, they are accustomed to setting their own agendas, and almost always fail to spend the time necessary for adequate witness preparations. (A good rule of thumb: three hours of witness preparation time should be spent for every hour of actual testimony in court.) Often, younger attorney associates are assigned the task of witness depositions and preparations. Many times this results in a waste of effort: the young attorney angry and frustrated because his recommendations regarding how the witness should come across in court are not treated with due deference and respect (i.e., he is not "winning"); and the senior executive not willing to take advice from someone beneath him in the pecking order. Is it any wonder that the testimony of such witnesses often explodes like a rotten egg in court?