Handling the Angry Witness

You’re gearing up for trial, you hardly have the time or patience to deal with an angry witness. Yet there you are, in the unenviable position of having to prepare a witness who is angry for any number of reasons:

- The witness is a client, angry that this matter couldn’t be settled or that it even is in litigation at all.

- The witness is furious at being “required” to testify.

- The witness has healed or substantially recovered from the incidents at issue and resents having to deal with “it” all over again.

Whatever the witness’s reason, he or she is mad! And only too happy to tell you all about how aggravated and upset they are. You try to get down to the business of prep with “OK, but we’ve got to focus on preparing you for your testimony,” which is labored, halting and difficult at best.

There is a more effective way. People in highly charged emotional states need FIRST to have their emotions thoroughly acknowledged, in order to clear their minds and hearts sufficiently to think rationally.

Start by reflecting your witness’s emotions: “It is frustrating to have to go through this again.” Let them respond with another emotional salvo, and follow that with something like “This has been really hard on you.” By now, the witness will have calmed down some, because you’re not resisting their emotion, you’re acknowledging it. Notice how the acknowledgement is done in third person, non-inflammatory terms. Once you sense that the witness is less angry, you’re ready to open the prep session with the use of the word ‘and.’ “And that’s why we’re here today—to prepare you so the jurors can understand your perspective.” 

More than anything, emotionally wrought people want just one thing – to be genuinely heard. 

 

Keep Clients Happy by Keeping Them In the Loop

Clients dislike surprises, especially unpleasant ones. This holds true for small surprises, such as finding out at the last minute that a meeting was rescheduled, and for large surprises, such as finding out that the worst possible jury has just been impaneled for their trial.

Every case has its “surprises” – aka problems; some can be anticipated, others cannot. In your eagerness to maintain credibility and be an effective problem-solver for your clients, you may neglect to inform clients of problems in timely fashion. Inevitably, you then find yourself with the double headache of trying to appease an unpleasantly surprised and irritated client, and of trying to resolve the original problem.

Most clients need and want to be informed about the troublesome aspects of their case. Client-satisfaction surveys show that a primary source of client complaints is that lawyers do not inform them about problems until the problems are so big they can no longer be ignored. To top it off, clients complain that lawyers are unrealistic, usually minimizing problems and overestimating their ability to deal with them quickly and easily.

Diminish the surprise factor by informing your clients of potential problems as soon as you begin working the case. Be upfront with your clients. Do your best to keep them in the loop as much as possible. Hopefully, you’ll avert most of those problems and your clients will be the more satisfied because of it.

Not “The Other Side Of The Story,” The Other Story

It doesn’t matter which side you represent, you must tell a story. For plaintiff, this is obvious: there’s a wrong to be righted, and it always has a story. For defense, this is equally true, though not always acknowledged.

You see, it’s not about “the other side of the story,” for that places the control back in plaintiff’s hands. Plaintiff still defines the terms of the game, the boundaries of play. It’s about “the other story” where defense presents an entirely different scenario for jurors to experience. Now the playing field is level. Jurors can choose to be convinced by one story or the other.

The truism “the best defense is a good offense” holds. Instead of defending, defense now speaks to plaintiff’s claims by showing how they fit as legitimate, “good” pieces within defense’s story.  So, for example, with a med mal case, defense could include as part of its story, how Doctor’s procedure/process is highly regarded - the best possible and safest course given the patient’s condition. That Doctor trusts, relies on, and has seen excellent results from the procedure/process. That Doctor used various diagnostics to validate Doctor’s choice. That Doctor’s was employed a well-thought out decision-making process (“decision tree”).  And of course, to include in the story as well, how plaintiff neglected Doctor’s instructions, and the alternate causes for plaintiff’s current condition.

As laborious as the above may seem, giving the jurors a rich and many-pronged defense story, as opposed to simply defending against specific claims, will greatly increase your chances of – a winning case.