Do you remember when we crammed the night before an exam or pulled an all-nighter to write a paper? I suspect a lot of us did freshman year. If we did well on the exam, it might confirm the belief that cramming is a viable strategy for studying. Well, it’s not, and there’s a lot of research and science to back that up, but it’s done all the time in schools. For those of you who were brilliant at “binge studying” and may be thinking about leaving this post, don’t you dare. This is for you.
The habit of exam cramming has slipped into the realm of witness preparation. This is a bad sign for important witnesses. Testifying is completely different from taking an exam. Testifying is less about what we know than how we tell a story or project our character or respond to hostile questions. Our study habits at school are not relevant to being “tested” in deposition or trial. It’s a terrible mistake to assume that we can prepare a witness in the same way we prepared for an exam. Imagine a football team getting ready for a big game by watching video of the opponent the day before and never practicing.
I know, wise reader, that you don’t do this as a rule, and you probably don’t think anybody else does either, but there are plenty of lawyers who hold off preparing their clients until a week before their testimony, and then they cram all the preparation into a single meeting. I know of a few who wait until the day before the testimony. Now, if the testimony is straight-forward and the witness poised, this practice may do no harm, but it’s dangerous and reckless with an inexperienced client who faces a tough examination in a big case.
I am aware of a witness consultant who meets one time (alone) with a defendant for four to eight hours. It’s an intense immersion experience in testifying generally. There is no discussion of the case specifics. The consultant may be brilliant, and may have an impact on the witness that day, but the instructions and lessons are not sustainable. There is no deep learning. There are at least three reasons – forgetting, chunking and spacing.
You don’t need to be told that we forget a lot. What we may not fully appreciate is how much and how quickly we forget. The Ebbinghaus Curve (which has been around since 1885 when Hermann Ebbinghaus first measured how long people remember) calculates that we forget about 60% of new information after two days. More recent research reports memory loss closer to 70% after a day. It’s as if your working memory is an oil pan and there’s a small hole in the pan. It may take a day or two but most of the oil will drain out.
The irony is that cram sessions are often scheduled near the date of testimony so that the instructions will be fresh in the witness’ mind. We recognize the risk that witnesses will forget some of what we tell them and so we look to scheduling as a solution. But that won’t work either because the concentration of information in the cram session will overload the witness and cause him to forget the instructions.
Working memory is generally limited to seven to nine “chunks” of information or ideas (George Miller’s seminal experiments, Psych. Review, 1956). When you think about the amount of information involved in orienting an inexperienced client to the complex rules of testifying while also reviewing documents, emails and potential lines of hostile questioning, there will be a lot more than nine chunks of information or ideas. If you dump all this on a client in a single meeting, much of your guidance and counsel will slide off and be lost.
It is well accepted that spacing lessons over multiple meetings of shorter duration is more effective than one long session (see Make It Stick: The Science of Successful Learning, 2014). Why is this so? One expert, William R. Klemm, Ph.D. (Mental Biology: The New Science of How the Brain and Mind Relate, 2014), makes this observation:
“Two ideas prevail. One is that in massed trials [cram sessions] there is not much time for each presentation to be processed in context. In spaced trials each learning presentation occurs in a slightly different context, thus providing many more implicit cues that can be unconsciously accessed during retrieval attempts. Finally, a host of recently reported studies show that each time you are re-exposed to a learning object, the memory is re-consolidated. Successive consolidation events reinforce each other. Multiple consolidations do not occur in massed trials because consolidation takes many minutes or even hours.”
Your intuition may tell you that spacing is a terrible idea because your client will forget a lot when prep sessions run over a six week period. Your client will indeed forget, and that paradoxically is a good thing. Multiple prep sessions are opportunities to refresh and re-learn, and it is the process of relearning that consolidates the lessons and deepens the learning.
It is indisputable that spaced learning and multiple prep sessions work better than a single long meeting nearer to the testimony. That is because we learn best by doing. As kids, we didn’t learn to ride a bike until after four or five attempts. The body takes a while to find equilibrium. So too a rookie witness.
If there’s a secondary witness with simple testimony and no particular vulnerabilities, a single prep session will probably do no harm. For important witnesses and challenging testimony or risky documents, plan for multiple meetings. Three two-hour prep sessions spaced every two weeks are more effective than one six hour meeting two days before the testimony. Even more effective are a single two hour meeting and four forty-five minute videoconferences (Webex, Facetime or Google +) that are spaced ten days apart. For clients the default preparation standard should be at least three meetings or conferences.