How to Tailor Your Preparation Approach for Emotional Witnesses

Witnesses have a significant influence on how a case will play out. Their testimony has the power to change the trajectory of the case, and if it goes to trial, shape a jury's perception of the facts. Emotional witnesses pose a unique challenge. Their testimony may be compelling, but also challenging to manage, particularly if emotions overpower the evidence or cause the deposition proceedings to go off course. Effectively managing witnesses involves a carefully considered strategy that is adapted to each witness' unique emotional state.

Defense attorneys must be prepared to train emotional witnesses with sensitivity and precision, to better ensure their testimony serves its purpose.

What’s the best way an attorney can help an emotional witness?

A calm, supportive environment encourages emotional regulation. Behavioral psychologists recommend creating a safe space for the witness to process their feelings and use empathetic listening to acknowledge their emotions without judgment. Attorneys can help the witness feel less anxious by directing their focus to their experience and offering breaks when necessary. To preserve the integrity of the witness's testimony and prevent emotion from overwhelming them, the defense attorney should ask straightforward, simple questions and give the witness time to gather composure. This approach empowers the witness to communicate effectively while protecting their credibility.

Preparing the Emotional Witness

The first step in handling emotional witnesses is preparation. This stage begins well before the witness sits down for their deposition. Here are a few key strategies for preparing witnesses:

Pre-Testimony Support

Attorneys might overlook how little witnesses know about litigation. For emotional witnesses, a preparatory meeting is essential. Spend time with the witness before the deposition, discuss the case, and set expectations. Let them know what to expect – it is normal to feel nervous or emotional but reassure them that they can take their time and ask for breaks if needed. This approach and reassurance help to reduce anxiety and prevent emotional outbursts during testimony.

Mock Testimony

Conduct mock questioning sessions with the witness to practice their testimony in a controlled environment. Exposure and witness training build confidence and will help them become more comfortable with the process. This way, an attorney can also simulate potential scenarios and questions and anticipate moments when emotions might surface, a required preparation step to give the witness the confidence they need to stay composed.

Discuss Emotional Triggers

Emotional witnesses often have specific triggers that cause them to break down. These triggers may include particular questions, memories, or aspects of the case—they can also be unexpected. It’s important to know what to look for and how to assess them. Working with litigation consultants with training in psychology helps attorneys learn to identify potential triggers and not be caught off guard by them. 

Before the deposition, discuss potential triggers with your witness and formulate a strategy to either avoid or manage them during testimony. Understanding triggers helps guide the witness through their testimony without unnecessarily escalating emotions.

Create a Calm and Supportive Environment

The deposition is an intimidating environment for most witnesses, but it can be especially overwhelming for those who are emotionally charged. Create a calm, supportive environment for witnesses to better navigate the deposition experience.

Trust and Rapport

Always build rapport with the witness before their deposition. When they know that they have your support throughout the process, the witness feels comfortable and is more likely to remain composed during testimony. A trusting relationship also encourages the witness to be more forthcoming and provide more accurate information.

Non-Verbal Cues

As you ask the witness mock questions, pay attention to the emotional state of the witness. Non-verbal cues like trembling hands and a shaky voice can indicate that the witness is becoming overwhelmed. Take a break and address their reactions and emotions to help them manage their discomfort. Working with a litigation consultant with a psychology background can help defense attorneys address the source of the emotional reaction and provide support and strategies to navigate the distress. 

Understanding Emotional Witnesses

Emotional witnesses may express a variety of feelings, such as sadness, anger, anxiety, fear, or frustration. These emotions can arise from personal trauma related to the case or stem from outside pressures and stress. Understanding the source of the emotion is key to managing the witness effectively.

For example, a witness can become emotional because they are testifying about a traumatic event they experienced. Alternatively, some witnesses may feel the weight of the situation, knowing that their testimony could significantly affect the case’s outcome. While emotions are natural, they can cloud judgment and hinder the witness’s ability to recall facts accurately.

Attorneys need to recognize these emotions and use strategies that allow the witnesses to express themselves in a controlled and effective manner.

Adapting Questions to Manage Emotional Testimony

One of the most crucial aspects of handling emotional witnesses is the approach to questioning. Emotional witnesses can easily become distracted by their emotions, which leads to inconsistent or incomplete responses. 

To mitigate this, attorneys can adapt questioning techniques to keep the focus on the facts while also acknowledging the emotional aspect of the witness’ testimony. However, it is also important to ask witnesses questions during prep that they can expect to encounter in the actual deposition. Helping the witness navigate the emotions of difficult questions is a core aspect of witness prep. 

Use Empathy

Recognize when the witness becomes emotional and offer empathy. For example, you can say, “I understand that this is difficult for you, but if you could, please describe what happened next.” Acknowledging the witness’s emotional state shows that you care about their well-being, which can help them stay engaged in the process.

Pause for Reflection

Emotional witnesses need time to process their thoughts before responding. When asking questions during preparation, encourage the witness to take a brief pause. This gives witnesses an opportunity to collect themselves and answer thoughtfully. The witness should be given practice with quick questions from opposing counsel and, when the witness fails, stop and provide guidance and reassurance that they can improve.

Improve Testimony With Courtroom Sciences

Handling emotional witnesses requires a combination of empathy and strategic questioning. Witnesses can provide crucial insights into a case, but their emotions must be carefully managed to avoid undermining their credibility or the overall effectiveness of their testimony. Working with behavioral psychologists and consultants can help attorneys find the right approach to turn emotional witnesses into valuable assets during deposition and trial and ensure their testimony is both effective and impactful. 

Courtroom Sciences helps attorneys efficiently navigate litigation by providing psychological expertise, science-backed data, and expert support for all phases of litigation. Learn how CSI's litigation consulting experts can improve outcomes for your next case. Speak with one of our experts to get started.

Key Takeaways:

●  Emotional witnesses require pre-deposition meetings to build confidence and reduce anxiety.

●  A calm atmosphere helps witnesses regulate emotions and deliver more effective testimony.

●  Consulting behavioral experts can help attorneys identify emotional triggers and apply psychology-backed strategies for witness management.

●  Acknowledging a witness’s emotions and showing compassion can build trust and encourage more accurate and composed testimony.