- Tsongas Litigation Consulting
PREPARING INTERNATIONAL WITNESSES FOR TRIAL
Under the best of conditions, preparing a non-expert witness to testify at trial is a critical component of an attorney’s preparation efforts. It is a challenging situation for someone with little or no experience in the legal system to take the stand in a courtroom and answer questions from an attorney who is far more experienced in this situation.
There are a number of strategies that can be used to get a typical witness ready for trial. But witnesses who are from another country and do not speak English as their first language present a unique set of challenges when engaging in witness prep. Many of these witnesses will be extremely nervous coming to another country and testifying in a court setting with which they likely have very little familiarity. These witnesses will need some additional preparation and strategies to set them up for success.
Understand Context-Based Apprehension
Most people feel some nervousness about speaking in public. For some individuals, everyday social interaction is not a problem, but standing alone and speaking to an audience creates more anxiety. This is likely true of the majority of witnesses one will encounter. This type of anxiety is called “context-based” apprehension, because it is a fear that is only exhibited in certain communication contexts – not in every interaction.
According to James McCroskey, an expert on communication apprehension, in the context of public speaking, the components that typically trigger anxiety include the degree of evaluation, the degree of conspicuousness, the degree of ambiguity, the degree of novelty, and the degree of prior success. The degree of evaluation can be a major trigger for some witnesses, as they may feel both their attorney and the opposing counsel are assessing their answers to determine the ultimate probability of success in the case. These individuals need to be assured that they are not the linchpin of the case, and there are many other factors that will determine the outcome of the matter.
Provide Realistic Practice Sessions
A realistic practice session will help minimize the other likely concerns of the average witness. A session where the witness is asked questions while remaining “in character” will help eliminate some of the ambiguity and novelty of the situation. It is especially important to simulate a realistic cross-examination on the more challenging topics. It is helpful to conduct such a session in a mock courtroom when possible to give the speaker a realistic perspective of the trial setting. It is not enough just to sit down and review the facts with the witness. He or she needs to practice in a similar situation to address the fear created by the novelty and ambiguity of the situation.
Clarify Courtroom Etiquette and Procedures
The nervousness of international witnesses is exacerbated by the unfamiliarity with the U.S. court system and the typical processes of a trial. This might also be true for American witnesses, but years of watching Law and Order and other legal procedurals has removed some of the mystery. Explaining how the objection process works is one example of clarifying a potential stressful situation before the witness takes the stand. It is also important to walk through every step of the process, from the moment they arrive at the courthouse to the moment they leave, so a witness will have no uncertainty about what they are going to face. For example, one international witness with whom I was recently working wanted to know if he should wave and say hello to the jury upon entering the courtroom. Clarifying issues of etiquette and court rules will help prevent an embarrassing situation that could make a speaker’s anxiety become even worse.
Familiarize Witnesses with the Courtroom Setting
Other simple steps – like taking the witness to the courtroom (or at least a similar courtroom) and letting them watch some of a different trial – can be useful. This will give the witness a feel for how the examination process looks in real life. Taking pictures of the courtroom, when permitted, will also help establish the scene for the witness and minimize the degree of ambiguity in the situation.
Support Various Language Skill Levels
Language issues can also be a source of anxiety. Witnesses need to be encouraged to never answer a question unless they are certain about what’s being asked. This is true of all witnesses, but when English is not the speaker’s native language, another layer of complexity is added to the situation. There are many good reasons not to use a translator, as jurors would rather hear directly from the witness, but if the witness is not confident or comfortable testifying in English, using a translator can greatly reduce the person’s anxiety, which will improve performance. If this is the case, witnesses need to be reminded that the jury will still carefully watch their non-verbal cues for insights about their character and veracity, so they should practice making eye contact with a mock audience and being cognizant of their expressions while testifying.
Finally, as I tell all my witnesses, a little nervousness can be a good thing. It will keep your adrenaline flowing, which will promote greater focus on the questions and add some dynamism to their delivery. They key here is that a “little” nervousness is helpful, but too much can certainly be harmful to credibility and performance. Taking a few extra steps with international witnesses can help minimize the typical fear felt when entering a unique communication context like a courtroom.