I suspect public speaking is Americans' number one fear only because most of us don't think about getting sued. In reality, the fear of being sued and having to serve as a defendant in a public court proceeding can be crippling to the individual defendant and the defendant's case. Two studies of U.S. doctors facing malpractice litigation found that 96 percent acknowledged feelings of depression and intense anger for at least a limited period of time. Furthermore, 33 percent experienced clinical symptoms associated with depression, such as insomnia, loss of appetite, loss of energy and decreased libido.
In employment litigation, the emotions are similar. As Americans, we take our jobs very seriously and a challenge to our professional integrity feels very personal to most of us. Whether it's a CEO angered by the time and energy a seemingly frivolous complaint consumes, or the humiliation and shame felt by an individual supervisor whose behavior is publicly challenged, the litigation process takes its toll.
All too often, this emotional turmoil follows the defendant into the courtroom and adversely impacts his or her testimony. A frustrated defendant may lapse into a defensive or arrogant posture. During testimony, a fearful manager may ramble on excessively, or to the contrary say too little, change the subject without answering the question, answer unasked questions often with horrible implications, over-intellectualize, change voice tone, use counterproductive mannerisms or look fearful, hopeless and confused. In this article, we'll take a look at the often-ignored first step of witness preparation - helping your client build an emotional defense.
Litigation Stress From the Defense Perspective
No two lawsuits are exactly alike. Each complaint has its own life history that stems from the nature of the allegations, the defendants perception of the events that give rise to the complaint, related or unrelated circumstances in the defendant's personal and professional life; the nature of the relationship between the defendant and the plaintiff and the defendant and the plaintiff's perception of things. In some cases, because the defendant had no relationship with the plaintiff, or the alleged injury appears to be trivial, the major source of stress may come from the frustration and inconvenience of having to deal with a complaint. For defendants who feel they were either negligent, contributed in some way to the injury claimed by the plaintiff, or are ambivalent about their role, the process is much more difficult.
However, regardless of the personal involvement of the defendant, dealing with litigation will be challenging and exhausting. Litigation or disciplinary hearings are lengthy and unpredictable processes. Consequently, emotional symptoms may reoccur whenever the case demands the defendant's attention. For example, one to two weeks after an employer receives a complaint and has consulted with an attorney, emotional equilibrium may return. A call may months later to schedule the first legal conference may cause the whole spectrum to reoccur. This pattern may occur repeatedly over a number of years, depending upon the degree of the defendant's involvement with the case up to and including the time of trial or hearing.
The outcome doesn't always bring relief. Some defendants whose case is settled out of court report lingering regrets and feel a lack of vindication, even though settlement involves no admission of guilt or denial of guilt. For many defendants who win their case, there remains a sense of frustration and anger that the whole process served no particular purpose and they should not have had to defend their complaint to begin with.
Encourage your client to find a way to profit from the experience. If s/he was ignorant of the law or uninformed about elements of the situation, take care to correct that. If his or her actions were taken in good faith, and rules and procedures were followed, help your defendant gain a perspective on the event. The vast majority of employees do not sue their employers and even fewer do so for illegitimate reasons. Corporate defendants who become cynical as a result of a bad experience are, ironically, setting themselves for more legal problems by conveying an attitude of skepticism toward legitimate employee complaints and by adopting an adversarial attitude toward employee-employer relations.
Preventing Emotions From Sabotaging Your Defendant's Testimony
Malone and Hoffman identify the witness's level of confidence about his ability to perform in the deposition environment as the "primary factor affecting the witnesses performance." Daniel M. Malone and Peter T. Hoffman, The Effective Deposition (Second edition, NITA, 1996) at. 155. They conclude that the "primary goal" of witness preparation is to "take burdens off the witness shoulder so that he can focus only on the substance of his answers." To accomplish this, you should build confidence first by directly addressing and acknowledging the legitimacy of your client's anxiety. Once that is done, you can move on to substance, technique and practice.
The average attorney spends less than an hour preparing his client for testimony. Moreover, the actual preparation often focuses on the mechanics of witness testimony; the nature and purpose of the testimony, an understanding of what types of questions are likely to be asked, and instructions for handling cross-examination. It is equally important that you help your witness develop strategies for managing their emotions while under attack.
In fact, the important and often most difficult behaviors to change in the witness are those created emotional-behavioral problems. Witnesses are rarely probed on what aspects of testifying make them afraid and/or angry in their case, even though unprocessed fear and anger is at the root of every poor witness performance. As a result, the well-meaning attorney spends too much time on communication style (don't fidget, look the jury in the eye, dress appropriately) and no time on strategies the witness can use to minimize the adverse impact strong emotions can have on the stand. When they're aroused during testimony, the witness who gave a stellar practice performance in your office comes across as arrogant, defensive or unfeeling on the stand.
As an example, I have witnessed numerous CEOs undermine their cases due to their anger over being in the unenviable position of having to defend a manager's poor judgment or their outrage over having their good faith efforts to promote a safe work environment challenged. Without finding productive avenues to channel this anger outside the courtroom, it translates into aggressiveness in the eyes of the jury. By using an effective witness training process, the defendant can learn to recognize the feeling that triggers the undesired response and generate a different and more effective response.
The Attorneys' Role In Emotion Management During Trial
For the defense, the trial experience is a roller coaster of varying emotions, ranging from bafflement to fear to anger. Here are two strategies for helping your clients reign in destructive emotions and channeling appropriate feelings into constructive use for your defense:
#1 - Deal with the nonlegal issues.
Provide reassurance: Defendants aren't just afraid of losing; they worry that they will be made a fool of, humiliated or bullied by opposing counsel. Reassure your clients that you will protect them from irrelevant or bullying questions, at least insofar as the judge will sustain your objections. In addition, make sure your client knows that the critical importance of his or her full participation without placing a crippling burden. It can be reassuring to a defendant to understand that s/he is not the only piece in the litigation puzzle and, as such, is not solely responsible for the outcome.
Normalize the stress. It is normal for a defendant to feel as though s/he is being personally attacked and misunderstood and that your reputation is being impugned. It's also normal to fear financial harm and potential retribution Give your client permission to talk about difficult topics and stressful emotions. Encourage your client to be realistic in terms of his or her time and energy; for instance, if particularly stressed by some aspect of the case, such as preparing form a hearing, suggest s/he rearrange his or her work schedule or postpone a critical meeting. If talking doesn't seem to help, suggest your client get therapy.
Depersonalize the process: Although many attorneys suggest to their clients that an allegation of wrongdoing or offensive conduct should not be taken personally, most defendants regard it as a direct assault on their personal and professional integrity.
Rather than attempt to convince your client otherwise, it is more helpful to give your client the tools to keep these feelings in check. After deposition or testimony, conduct a postmortem with your client so you can neutralize the client's tendency to play Monday-morning quarterback or ruminate about mistakes or errors. It can also be helpful to assign your defendant the task of sharing the process with an understanding friend, associate or spouse. There is a considerable body of research that supports the notion that the impact of a major stressor is modified by social support
#2: Involve Your Client
Educate them about the case: Your defendant should know the game and the game plan. addressing the challenges in their cases. For example, help your client understand the strengths and weaknesses of your case and the need to reveal and neutralize flaws with the jury early on. Find out what the witness thinks the case is about. Then tell her how both sides describe the case and explain it to the witness about varying themes and strategies. Define clearly the witness role, telling her what theories and themes she should support.
Teach them about the legal process: Give them a glossary of court and legal terms, so they can understand what you are talking about at all times Help them understand the difference between factual truth and legal truth. Prepare your defendant for the possibility that judges do not always approach a case without certain feelings of bias or antagonism for whatever reasons. Satisfy your client's need for answers by providing a range of certainty - how long the case will last, what the attorney fees are likely to be, how much similar cases settle for, etc.
Help them minimize damage at the office: Corporate defendants are often called upon to provide emotional support to other staff who may be subpoenaed or involved in the suit in some other way, as witnesses for example. Provide clear guidance regarding how much your client can share with other staff without getting into hot water. Help them address rumors and gossip to the extent possible. If a labor union is likely to be involved, help them communicate with union leaders about the facts of the situation. Working with the bargaining unit involved can help head off a morale crisis in your office.
The Bottom Line
The process of witness preparation is much more than saying, "don't volunteer information to the opposing counsel" or "don't answer a question if you aren't sure what it means." Neither does it boil down to an intellectual lesson on the legal process. It involves emotional preparation; without it, the most difficult witness may be the one with an extensive educational and highly honored background, who is articulate, clever, witty and 'damn angry about being the defendant in a litigation.'
As an attorney, it is important to understand the psychological and emotional ramifications of being sued and how these emotions can potentially undermine your client's testimony. It is these nonlegal issues that so often make or break a case; ignore them, and you do yourself and your client a disservice. On the bright side, defendants who are emotionally prepared for trial and for their testimony can share much of the burden of building a successful defense.
Witness preparation that includes a chance to discuss feelings about the upcoming testimony can proactively resolve potential problematic answers. As your defendant gains a better understanding of the cause and effect relationship between stressors and the resultant problematic responses to questions, s/he learns to decrease anxiety in the face of these stressors so that his or her mind can be free to assist you in providing the best defense possible. Ultimately, it is your defendant's ability to manage his or her emotions that will empower him or her to convey the right message. Jurors can forgive witnesses with style faults; what they won't excuse is a defendant who confidently and articulately tells them what they don't want to hear.
Copyright 2003 Joni Johnston
An Emotional Defense: Guiding Your Defendant Through Employment Litigation
