Shortly after the July issue of TJE published, we received an email from an attorney-reader in response to the Christie Brinkley divorce coverage wherein the court-appointed psychologist described Peter Cook, as a "narcissist with an insatiable ego who needs constant reassurance that he is a terrific guy" (CBS News.com, 7/8/2008).”I wonder”, wrote our reader, “how trial consultants would recommend proceeding with a narcissistic witness”. We asked three experienced trial consultants with different professional backgrounds to share their ideas about working with these difficult witnesses: Doug Keene (psychology), Charli Morris (communication), and Lisa DeCaro (theater). They describe their individual approaches with narcissistic witnesses in this issue of TJE.
Preparing the Narcissistic Witness: Mirror, Mirror, on the Wall
by Charlotte A. Morris
When I hear or read the term “narcissism” I can’t help but picture the illustration in my undergraduate textbook from Greek & Roman Mythology. You know the one I mean: a sketch of Narcissus gazing contentedly at his reflection in a pool of water.
And when I hear psychologists use the term – like the one who recently described Christy Brinkley’s soon-to-be-ex-husband Peter Cook as narcissistic – I understand that it’s probably a little more complicated than, “Mirror, Mirror, on the wall…”
One Size Does Not Fit All
Most often I encounter the narcissistic witness who is described first by the lawyer or client as self-centered, egotistic, arrogant or unsympathetic. In my experience none of these terms are one-size-fits-all, and that is the secret to addressing a host of witness traits that interfere with a person’s ability to effectively communicate the truth. I care less that those traits are present and more about why they persist in the context of the case.
Take, for example, preparing physicians for deposition and trial. Lawyers recognize how readily jurors may apply a common stereotype to doctors that reads a lot like the criteria for narcissism: arrogant, lacking empathy, and maybe even guilty of “playing God” a time or two.
Consider the following witness preparation stories of two emergency room physicians in separate medical malpractice lawsuits involving similar claims of missed or misdiagnosis. The doctors were both “stereotypical” in their communication styles at the start of our sessions – haughty, indifferent, impatient with the process, dismissive – but each for unique reasons.
Case One: What Seems to Be the Problem, Doctor?
Dr. One had already given his videotaped deposition when the client called to ask for my help preparing him for trial. When the DVD arrived I could not believe my eyes. The doctor appeared at the head of the conference room table wearing a t-shirt, sunglasses on his head, one ankle crossed over the other knee, and his chair tipped back with one shoulder slung over the back of the chair….for the entire deposition.
Wait, that’s not true. There were times when his impatience manifested itself as deep, audible sighs, eye-rolling, and intermittent bouts of lurching forward aggressively with his elbows on the table. When asked to testify about medical records he was cooperative right up until the moment he slid the paperwork off to the side or back in the direction of opposing counsel, as if it were hot to the touch. I later learned that he rode his bike to the deposition – it was a case down at the coast, after all – which explains the t-shirt and tennis shoes.
In this case the facts were better than average for the doctor, the diagnosis was tricky at best, and we felt confident that despite a disappointing outcome for the patient the doctor’s conduct was well within the standard of care. Nevertheless, Dr. One was put off by most of our questions about the care he gave the patient – even the friendly ones we thought might be developed eventually for direct examination – and the lawyer was quickly frustrated.
At one point the lawyer left the room, and I remained with the witness who had been told we could not discuss the case with each other outside the presence of the attorney. As soon as he heard the door in the latch, the doctor started in on me.
I know we can’t discuss the case, but can I tell you why this makes me so mad?
I feel just fine about the care I gave the patient that night and I’m not embarrassed to defend it, but frankly I wish they would just pay the people a million dollars. I’m serious. That might be the only way our system will get fixed.
Our healthcare system today is broken: for doctors and for patients. People don’t get the routine care they need and emergency rooms around here don’t have the resources to take care of the growing population. I see patients one time – when they are really sick or really hurt or just don’t have their own doctors – and there’s no continuity in care. I don’t have any control over what happens to them after I discharge them from the Emergency Department.
And anyone who wants to sue me can, so I’m stuck in a lawyer’s office all day instead of treating patients. We ought to just pay the plaintiffs until the system is totally bankrupt, and start all over again from the ground up.
This kind of confession happens more often than lawyers might think and we always learn something important and useful to turn an ineffective witness around. In this case, after heavy doses of empathy for the witness, I asked the doctor to share his concerns with the attorney. And then we spent time talking about his perspective and how it might be useful in his defense.
Together we reached the following conclusions:
1. The physician could make our “system” work better by treating the litigation process with respect. A witness can and should cooperate fully, consider the questions carefully, and answer thoughtfully every time. In return, jurors will approach our case with the same level of attention and degree of care. Jurors will also appreciate that the lawsuit is important to the doctor and meaningful to his professional practice.
2. The jury may well agree that our “system” is broken. Focus group participants tell me all the time about their frustration with healthcare. What if the jury understood that it’s frustrating for doctors too? What if they knew that this doctor empathizes with patients who feel equally squeezed by the constraints on the system? Perhaps our direct examination could allow the doctor to talk a bit about how the practice of medicine has changed and whether or not he thinks it could be improved? Isn’t it possible that – in this case with favorable facts/medical records – jurors would be reluctant to punish the doctor for problems that are systemic in healthcare?
Case Two: Put the Shoe on the Other Foot
Dr. Two was seemingly worse off than Dr. One, but the good news is that the attorneys invested in preparation before his deposition. Dr. Two was also impatient with the process, defensive and extremely anti-social. He greeted us by saying, “I know you guys like spending a day this way, but I don’t.” Funny, bad attitudes like his are not exactly why I enjoy spending a day with lawyers and witnesses, but I didn’t argue.
The lawyer in this case – confident in his thorough knowledge of the facts and medicine – thought I was there just to “fix” all of the doctor’s verbal and non-verbal communication problems: nervous mannerisms, lack of eye contact, monotone delivery, poor listening habits, answering too quickly, and others. True enough, all of those things needed fixing but once again it was the time spent getting to know the witness better that proved key to resolving the behaviors that made him appear so… narcissistic.
After more than half a day of the doctor telling us both that he couldn’t be bothered with this lawsuit – and the attorney repeatedly, positively reinforcing the doctor’s perspective that this was just a case of a greedy patient cashing in on his own misfortune – I asked a simple question that shifted the doctor’s paradigm for the case considerably. It went something like this:
Doctor I think I just heard you say something about being in a dispute with your former partners in business. Were you a plaintiff in a lawsuit?
Yes. I sued my partners and they settled out of court because they knew I could win.
So, in other words, you know what it’s like to be on the other side of a case, with a legitimate claim? Is it possible that your partners then thought your lawsuit was also frivolous, that you were being greedy?
Pause. Pause. Pause.
There are probably only a few times in more than a dozen years that I’ve experienced such a dramatic moment with lawyer and witness, with such a stunning shift in the witness’ perspective. This counts as one.
Try This with Narcissistic Witnesses in Any Case
Listen to their fears. It is easy to think that a highly capable, well-educated, experienced physician who faces the most serious medical emergencies would be fearless. But tough-talking witnesses are often compensating for their insecurity. The first example illustrates the importance of allowing (and inviting) a witness to share his fears, concerns and frustrations before digging right into the Q&A.
Be willing to go where a witness takes you. The first example also reminds us that witnesses themselves often hold the keys to case themes and strategies. By adopting the doctor’s perspective on a “broken system” we were able to strategically focus on the limited amount of care the patient received before and after a single visit to the ER, so that jurors would understand how little time the defendant had to observe and consider the patients’ history and symptoms.
Voir dire your witness. We wouldn’t think of starting a trial without asking jurors if they’ve ever been in a similar situation, ever considered filing a lawsuit, or ever been involved in any way in a lawsuit. The same goes for witnesses. Be sure you know much more than what the records reveal so you can make good connections with – and encourage cooperation from – your own witnesses.
Encourage consideration of other perspectives. The doctor in the second example was actually incredibly insightful as he repeated back to me the point he understood me to be making. Within half an hour he was fully engaged in the process of preparing. At the end of the day, he was thankful for the experience. All it took was an opportunity for him to see the lawsuit from a different angle.
Mirror, Mirror On the Wall…
In stark contrast to the Roman mythological figure, I have observed that narcissistic witnesses do not look lovingly in the mirror at their reflections. In fact, many of them would prefer that all of us kindly look away; the scrutiny a witness endures is perhaps the worst of what a person goes through in the course of litigation.
There really is no secret to success with some witnesses: ask good questions that the lawyers may not have considered before; watch closely, and listen carefully. Deliver empathy in heavy doses without condescending or coddling. Believe that a witness – of any type – wants to be heard before he testifies.
Charlotte A. (Charli) Morris, M.A. is a trial consultant in Raleigh, North Carolina. She consults on a wide variety of case types in venues across the country and devotes about half of her professional time to working with attorneys and their witnesses. Her book The Persuasive Edge (www.lawyersandjudges.com) draws on 15 years of experience and contains strategies for purposeful persuasion in every stage of litigation. When she’s not consulting, Charli is a skilled mediator for her three very communicative children.