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.
“Joe is the Worst Witness I’ve EVER Seen”:
Preparing the Narcissistic Witness without Losing Your Own Sanity
Christie Brinkley’s ex-husband, Peter Cook, was labeled a “narcissist” by the court-appointed psychiatrist in the recent Brinkley/Cook divorce proceedings. Whether Cook is a narcissist or not, this is a label which carries very specific implications about a person’s character. To many of us, this label implies more than just extreme self-absorption. To a lawyer preparing the witness, that label sends the message: This guy comes across as a jerk, and he’s going to be difficult to work with. These are obviously not qualities which make for an effective and credible witness.
The psychiatrist’s categorization of Cook has brought this question to the fore for many attorneys: What do you do when your witness seems to fit the label of “narcissist?” What do you do when your key witness comes across as arrogant, self-absorbed, maybe even untruthful? By definition, these witnesses believe they already know how to do everything – including testify in court – better than others, so why should they listen to your advice or instructions?
We all know how vital the testimony of a key witness can be. His attitude can lose the case for you, and you know it.
For those of us who specialize in preparing “difficult” witnesses, this is a label we hear a lot. The call comes early in the morning, as if it kept the poor attorney up all night: “Okay, so this is absolutely the worst witness you’ve ever had to prepare. He’s a CEO, he’s used to being in charge, and he won’t listen to me when I tell him to change his behavior on the stand. His deposition would have been a disaster if he’d been videotaped. He comes across as an arrogant jerk, and he won’t believe me when I tell him to just answer the question!”
Narcissist or not, it’s clear that this witness – we’ll call him Joe – appears arrogant, is difficult to prepare, and generally rubs people the wrong way. We don’t know Peter Cook personally, but we all know the type. And Joe is a textbook case.
In the limited time his attorney has to prepare Joe for the stand, it is unlikely there will be any psychological breakthroughs which would make Joe a different person. Fortunately, we don’t really need to fix Joe’s psyche; we only need to discover what will make Joe want to testify in the most effective way, and teach him how to look like a good witness. You can make Joe a solid, maybe even great, witness, by making changes to his behavior, even without making major changes to his personality. By changing the way he sits, letting him get himself into a hole during prep, teaching him how to avoid that hole in the future, and teaching him what it means to “win” the exchange (which is what he wants to do), you can make Joe’s arrogance look like confidence, and make his narcissism work for you. After all, one thing Joe definitely wants is to look good on the stand. Make sure he understands that following your instructions will make that happen.
First, teach Joe how to sit.
Most egotistical witnesses aren’t narcissists, they are just very insecure people who try to look confident in all the wrong ways, and end up looking arrogant. If you have a witness who slouches back in his chair, seems defensive or abrasive, or has an attitude problem, sometimes all it takes to fix the attitude is to change the way he or she is sitting.
Teach Joe to lean forward (as opposed to against the back of the chair) with a straight back, and clasped hands resting on the table. This is a strong, available, and confident position. Mock jurors rate witnesses who sit in this position as more credible than witnesses who sit back in their chairs. This is true even if the person sitting back is sitting up straight, with good posture. This forward position should be “home base” – Joe can gesture from here, but always comes back to this position. Suddenly, Joe appears to be confident, but also helpful, open, interested and other-centered.
But there’s a catch. Joe will need to be able to maintain this position for an extended period of time. He must be consistent throughout his testimony. If he sits this way on direct, but then regresses to his arrogant leaning-back position on cross, he’ll do himself more harm than good. In addition to looking arrogant, he’ll also look like he was acting on direct.
Unfortunately, this forward and upright position can put strain on a person’s back and make one tend to slouch or fidget. To make it easier to maintain this posture, tell Joe to sit far forward on the front of his chair. This position does not feel natural – you are literally perched on the front edge of your chair – but it is comfortable. And, it will take the strain off Joe’s lower back, and enable him to maintain this position for a longer period of time. He should maintain this position at all times during your prep sessions – this will make it a habit which Joe can rely on when the adrenaline starts flowing.
Remind him to maintain this position no matter what the examiner does. This will help to eliminate the nonverbal cues or “tells” that signal when the examiner has scored a point or otherwise made Joe feel uncomfortable.
NOTE: It is not enough to tell your witness what not to do. You must also tell him what to do. Give him active skills to solve the problems
you observe. For example, if a witness tends to swivel in his chair or fidget with his feet, have him anchor both feet flat on the floor, or bring his feet further under the chair. Find what works to help him lock his legs in place, and make the position more comfortable.
Let him get himself into a hole during prep, and teach him how to avoid that trap in the future.
When you begin preparing the witness, remember that we learn and retain new information more effectively in an interactive session than in a lecture. This is especially true for Joe, since he already thinks he knows everything, and just tunes you out when you’re trying to give him a lecture. You are better off skipping your usual laundry list of do’s and don’ts, and getting right to practicing. When Joe gets himself into a huge pit, he’ll be much more likely to listen to your helpful advice about how to get out of it, and to avoid it in the future. He’ll also start to trust you to get him out of the next pothole he finds himself in.
Re-evaluate the notion of “winning.”
Remember the classic scene from Raiders of the Lost Ark, where the villain’s henchman swings his sword around in an elaborate show of skill, only to have Indiana Jones look at him, unholster his pistol, and take him down in a single shot? Don’t let your witnesses go into battle swinging madly with a sword only to get swiftly shot down. Arm them with the skills they’ll need to come through unscathed.
Many times, narcissistic witnesses are ineffective because they are trying to beat the examiner at her own game. They think they can “win” the exchange, or that they can outsmart or outmaneuver the examiner. They see it as a battle, but they don’t know what ammunition they really have: their ability to tell their truth with credibility. You must discuss with Joe what “winning” means in this context. If you’re preparing him for a deposition, let him know that he cannot win (in the traditional sense) the case in deposition, but he can certainly lose it. Let him know the reality: that it is not his time to tell his side of the story and that opposing counsel will not walk out of the deposition and say, “Oh, boy. We’d better settle this thing because we just don’t have a chance!” He should know that the best way to win at the deposition is to make opposing counsel leave the room with nothing except the knowledge that Joe will be a great witness at trial.
Practice makes (almost) perfect.
This is true of all witnesses: practice makes (almost) perfect. Lectures and explanations simply do not work to change behavior. Many witnesses are told to answer only the question they are asked, but few are taught how to do it. This is a difficult concept for many witnesses to master, especially Joe, who thinks he knows the best answer to every question already. They are told to be open and honest, to tell their story, but then they are told to keep their answers short. They are told to listen to the question and correct any misconceptions in the question, but then they are told not to argue with the examiner. This confusing information is even more frustrating to someone like Joe, who is used to being in charge. The best way to teach Joe how to handle this very unique experience is to have him practice answering questions over, and over, and over again.
The bottom line:
With an arrogant, narcissistic, or otherwise difficult witness, you should be doing very little talking during your prep sessions – it should be all about practice. Just let Joe do the talking; he’ll think he’s in control and all the while he’ll be learning how not to be a difficult witness.
Some practice elements for Joe:
• Teach him how to sit. Don’t forget to tell him WHY you want him to sit this way (“Jury research shows that witnesses who sit this way are rated much higher”).
• Don’t lecture him. Jump right into practice sessions. Stop when you need to, to discuss his testimony, your themes, etc., but then get back to the practice.
• Let him get himself into a hole, then stop and discuss what happened (“You can see how avoiding that answer gave opposing counsel the chance to repeat the question over and over again”), and how to avoid it next time (“Just answer confidently, ‘Yes, I did.’”).
• Remember to focus a lot of time on practicing cross examination. This is going to be Joe’s Achilles heel, so spend a lot of time preparing him for it. Also don’t forget to explain and practice re-direct. When he gets a feeling for being “beaten up” on cross, and then saved by you on re-direct, his faith in you will go up, and he will be less likely to fight you.
• Play to Joe’s strengths. He is difficult because he is used to being in charge, and he is used to being right. Show him how he has control in this situation: by careful listening and short, concise responses.
Lisa DeCaro [email@example.com] is a trial consultant and principal with Courtroom Performance, Inc., and co-author of The Lawyer's Winning Edge: Exceptional Courtroom Performance. She does primarily civil work and has worked in venues across the country. She specializes in witness preparation, complex litigation cases, and product liability defense. You can read more about Ms. DeCaro at her webpage [http://www.CourtroomPerformance.com].