For most witnesses, having to testify in a legal deposition or at trial can be a nerve-wracking experience, particularly for an individual who has either never done it before or hasn’t done it very often. Witnesses may be nervous about what they will be asked, and frequently, they worry about saying something wrong. Because of this, witnesses often find themselves in situations where they either guess or freeze during their testimony, which can harm the overall case. Strategic witness training can help address these issues, allowing witnesses to deliver more credible and consistent testimony.

What are some key indicators that a witness is guessing during deposition?

Key phrases that may indicate a witness is guessing during a deposition include "I guess," "I think," "I believe," "I probably," and "I assume.” Attorneys should work with their witnesses to correct these guess responses during mock deposition questioning. 

Identifying The Causes of Guessing in Witness Testimony

Despite being explicitly told not to guess, guessing can be a fairly common pitfall for witnesses during their testimony, with witnesses often resorting to phrases like "I think," "I believe," "I probably," and "I assume.” While these phrases may seem harmless in other situations, during a witness’ testimony, these expressions can introduce uncertainty and inconsistency to their statements. 

In some instances, witnesses may not even realize that they are guessing, as they genuinely want to provide helpful answers to their questions. Embarrassment and intimidation are two of the biggest reasons many witnesses succumb to guessing. Plaintiff attorneys are practically experts at creating such powerful emotional reactions, often saying to a witness something akin to, ‘You’ve worked at this company for many years, and you are unable to answer my question,’ or ‘My client has a right to an answer.’ This type of intimidation can cause a witness to feel compelled to respond, regardless of its accuracy or relevance.

However, regardless of the cause, guessing is often a devastating witness blunder. Guesses are rarely accurate and can be easily exploited by skilled opposing counsel during cross-examination, making it crucial for defense counsel to stop witnesses from yielding to this behavior. 

Steps to Address Guessing in Witness Training

Witness training must go beyond merely telling witnesses not to guess to address guessing effectively. Instead, trial attorneys should educate witnesses about what guessing looks like and provide concrete examples of what constitutes guessing behavior so that they can learn to recognize it in their responses. 

First, witnesses should understand that the inclination to guess is natural, especially in high-stress situations like a deposition or trial. From there, defense attorneys need to provide examples of guessing. This should include real examples of specific phrases and expressions that indicate guessing, such as "I think" or "I believe," to help them identify these behaviors.

Including mock questioning is another critical step in addressing witness guessing. Mock questions allow the witness to practice answering questions in a safe space and allow defense attorneys to address any guessing occurring. This immediate reinforcement can help break the habit of guessing. It is important to make witnesses aware that guessing can harm their case by introducing inaccuracies and inconsistencies.

Understanding the Freeze/Appease Response

While guessing is a well-known challenge, the freeze/appease response is a lesser-discussed aspect of witness testimony. Although less common than guessing, the freeze response should not be underestimated as this survival response leads to the witness agreeing with the questioner on every question to appease them.

Witnesses may be susceptible to this response due to various factors, such as past trauma or the fear of conflict. Regardless of the reasons, when witnesses enter the freeze/appease mode, they tend to become overly agreeable, often responding with a series of "yes" answers. Similar to the problem of witness guessing, this freeze/appease behavior can also be problematic, as it compromises the witness's credibility. 

Steps to Address the Freeze/Appease Response

Dealing with the freeze response requires neurocognitive training to help the witness be prepared during their testimony. To address the freeze response effectively, defense attorneys should begin by making witnesses aware of this survival mechanism and how it can affect their testimony. Then, similarly to addressing the guessing inclination, attorneys should pay close attention to signs of freeze appease during mock questioning and address them promptly.  

Witnesses should also be trained to disagree with questions when necessary rather than automatically agreeing assertively. Attorneys can provide support and reassurance, helping witnesses to feel confident in their responses, even when facing challenging questions.

To increase the chances of achieving favorable outcomes while mitigating risks, defense attorneys must take proactive steps to help witnesses avoid guessing and freezing during testimony. At Courtroom Sciences, our neuropsychology experts can help trial attorneys prevent nuclear settlements and verdicts and avoid these critical mistakes through focused witness effectiveness training. Speak with one of our experts to get started. 

Key Takeaways

●  Key phrases that may indicate a witness is guessing during a deposition include "I think," "I believe," "I probably," and "I assume.”

●  Witness training should go beyond telling witnesses not to guess and include education, examples, and mock questioning. 

●  The less-discussed freeze/appease response occurs when witnesses become overly agreeable, saying "yes" to every question.

●  Consistent reinforcement during mock questioning can help witnesses overcome guessing and freezing. 

●  At Courtroom Sciences, our psychology experts can help trial attorneys through focused witness effectiveness training.