Confidence is an invaluable quality in witnesses. It strengthens their credibility and persuasiveness. We expect confidence from CEOs and high-performing professionals. We don’t expect it from individual plaintiffs or low-level company employees. What then do we do with a nervous, shy company engineer or accountant who has never testified before? Is it foolish to think we can develop confidence in him?
I once thought that confidence was the product of genes, parenting and early childhood experiences, and that you either had it or you didn’t by the age of twelve. But then I stumbled upon a remarkable program at West Point that teaches mental preparation and confidence in high-stress situations. It trains cadets to be focused and calm when everything about them is going wrong. It prepares them for the chaos and fear of the battlefield. The program is at the Academy’s Center for Enhanced Performance and is directed (or was) by Nate Zinnser.
I’ve talked to Nate a few times. He believes that confidence is less a gift of nature and more a state of mind, a mental habit and a discipline. It’s how you think about what happens to you. It’s what you choose to focus on.
Professional athletes have bad days. They may be terrible for an inning or a quarter or nine holes; they may give up a home run or an interception or a double-bogey. The good ones don’t let it affect the rest of their game because they are not focused on outcomes or winning. They are focused on the next pitch or the next play or the next swing. They block out the negative event. This discipline and mental toughness is even more evident in Olympic figure skating where the skater must complete her program even after she misses a “triple axel” and falls down. The golfer Jordan Spieth talked about this mental focus in an interview with ESPN.
ESPN: You seem to have your very best when your best is required. What exactly do you attribute that to?
Jordan Spieth: It seems like whenever the moment gets bigger and my heart is beating faster, I go away from mechanics and I turn to, ‘How do I calm my heart rate down?’ And the way that I do that is by trying to zero in on a target — to aim small, miss small. For me, that actually helps my swing. It helps my putting stroke. It helps everything in my game. It’s easier for me to think less about mechanics and more about the mental side, controlling my emotions and really picking a specific target instead of worrying about how my swing looks.
According to West Point, the first step in building confidence is to eliminate negative thinking. It’s remarkable how we hold ourselves back from achieving things because of negative thoughts. Nate told me about a research study where college swimmers were duped into thinking they had decisively beaten their personal best records. The next time they raced most of them swam faster and beat their best times. Nothing had changed except in their minds. A lot of people can do better than they think but they limit themselves and that’s why they fall short of their potential.
West Point believes that confidence is largely a state of mind and it’s teachable. Okay, you say, but West Point cadets are elite, naturally gifted individuals. What about the average Joe witness? There is no denying that there are witnesses who will never be confident. But I’m sure that’s true for West Point cadets as well. Not to draw too fine a point but perhaps we can say that while confidence is teachable it’s not always learnable.
How do you teach confidence? You do it slowly. It’s a program and a process. It’s not a prepared meal that goes in the microwave. You may first need to address a lack of confidence. If a witness looks tentative, you will try to analyze the cause. Is it uncertainty about the process, guilt about having said something wrong, fear of saying something damaging or being made to look the fool? Often it’s simply a matter of getting educated. That might include visiting a courtroom, reading a deposition, observing trial testimony or practicing a mock examination. If it’s more profound or complicated, here are a few considerations.
- Build your client’s story, and build it line by line with your client. The story should take no more than twenty seconds to say and it should use your client’s words and voice (the client must own it). Have the client dictate it into a smart phone and play it back three times a day for a week (the advertising industry believes it takes twenty-one repetitions for a message to become embedded in a person’s subconscious). The story becomes an anchor and a refuge for both direct and cross examination.
- Review every potential line of cross examination and pick the easiest one to answer and work on that first until you and your client feel good about his response. Then choose the next easiest issue and work on that exclusively until you and he feel good about his response. Leave the toughest testimony to the end of your preparation.
- Practice builds confidence. Mock exams are enormously helpful. However, there are practitioners who believe that the best way to prepare a witness is through a grueling mock cross examination. That may work on some witnesses but it may destroy the confidence of others. It’s emotional corporal punishment. Confidence is fragile in the early stages of development. You build it brick by brick.
- Give your client or witness the opportunity to make choices or decisions about specific messaging or phrasing. It’s okay if they make the wrong choice. You can correct it later, although the witness will often figure it out on their own. As with kids, when witnesses feel they have choices, they feel more in control and more powerful. Control and power breed confidence.