How much can you help a difficult witness? How much improvement can you realistically expect of a hard-charging, lip-curling client? I suspect the majority view is “not much.” The argument is that you can’t change a person’s character. People are who they are. While that may be true in an individual case, I think it misses an important point. Our interactions influence how well a witness does. It’s not solely about the witness. It’s about us as well.
I used to think that when a witness screwed up, it was largely the witness’ fault. I now believe it’s largely our fault. Our expectations, our assumptions and our behaviors help or hurt a witness. There’s even a fancy academic name for this – the Pygmalion Effect.
The Pygmalion Effect is a core concept in education and teacher training and is based on pioneering work in the 1960s by Harvard researchers, Rosenthal and Jacobson (Pygmalion in the Classroom). It posits that we cue people or students about our expectations of them. They internalize those expectations and adjust their behavior to match them. Expectations become true even if they are inaccurate.
When a teacher expects a student to do poorly she will tend to perform below her capabilities. But if a teacher believes in a student, the student will more likely believe in herself. That will improve her self-esteem and motivation and that will lead to better academic performance. It’s a self-fulfilling prophecy.
I believe this idea applies to witnesses. When a lawyer expects a client to be a poor witness, the client picks up the signs and thinks to himself, “Well, if my lawyer thinks I’m going to do poorly, and he knows this business, I guess I’m going to be a bad witness.” Then the cycle of negative thinking starts and he testifies poorly. Incidentally, the lawyer is almost never aware that he is sending the client these negative signals.
This idea is a theme in Shaw’s play Pygmalion (My Fair Lady). Professor Henry Higgins bets Colonel Pickering that he can transform Eliza Doolittle (a Cockney flower girl) from a “draggle-tailed guttersnipe” into a high society lady who could pass “as a duchess at an ambassador’s garden party.” He allowed himself six months to achieve this metamorphosis.
Henry Higgins had a domineering personality and an acerbic tongue. He was a good drill instructor but a poor teacher, and he was too full of himself to see that his overbearing methods were retarding her progress. Eliza can’t become a lady until she first feels like a lady but Higgins always treats her like a flower girl. On the other hand Colonel Pickering sees Eliza’s character and spirit and makes her feel special:
ELIZA: “You see, really and truly, apart from the things anyone can pick up (the dressing and the proper way of speaking, and so on), the difference between a lady and a flower girl is not how she behaves, but how she’s treated. I shall always be a flower girl to Professor Higgins, because he always treats me as a flower girl, and always will; but I know I can be a lady to you, because you always treat me as a lady, and always will.”
PICKERING: “No doubt. Still, he taught you to speak; and I couldn’t have done that, you know.”
ELIZA: “It was just like learning to dance in the fashionable way: there was nothing more than that in it. But do you know what began my real education?”
ELIZA: “Your calling me ‘Miss Doolittle’ that day when I first came to Wimpole Street. That was the beginning of self-respect for me. And there were a hundred little things you never noticed, because they came naturally to you; things about standing up and taking off your hat and opening the door.”
We behave in part by how we are treated. Show me a warm smile and I will feel good and smile back. Believe in me and I will meet your expectations. Show me respect and my confidence will grow. Criticize me too much and I will turn inward and lose my confidence.
The bottom line is you influence a witness’ performance by your attitude and assumptions. Perhaps you don’t like the witness. Don’t you think that could shake the witness’ confidence? Maybe you like the witness well enough but you don’t think he’s very smart or capable of handling a tough cross exam. Or maybe he’s smart enough but you’re too critical of him, correcting every little thing. Or maybe there’s a cultural gap – Japanese engineer or French doctor or Indian researcher. You expect the witness to understand your instructions, but if he doesn’t, you write him off as difficult. Your expectations and demeanor will be picked up by the witness and affect his testimony.
Let’s go back to the original question about how much you can expect a witness to improve. There are many factors but initially it depends on you, on your state of mind and on how much you think the witness can improve. There is a wonderful passage that touches on this in The Boys in the Boat (a terrific book about rowing and the 1936 U.S. Gold Medal Olympic team):
“George Pocock learned much about the hearts and souls of young men. He learned to see hope where a boy thought there was no hope, to see skill where skill was obscured by ego or by anxiety. He observed the fragility of confidence and the redemptive power of trust…”
What Pygmalion, Pickering and Pocock teach us is that we must first attend to our own state of mind and recognize our own doubts and biases. Faced with a challenging and obstreperous client they would find a glimmer of hope or a thread of humanity or a virtuous quality and they would build from that. They would trick themselves into believing the client could be much better and over time they would actually come to believe it. And then the witness would believe it. And then the witness would testify better than expected.