Do’s and don’ts of using videotape to prepare witnesses

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A new study has stirred up a debate about the effectiveness of showing witnesses videotape of themselves to prepare them for trial.

The study, although it wasn’t conducted in the legal context, found that participants who were videotaped were unable to assess certain personality traits based on viewing their own body language. The study concluded that we have a “blind spot” in being able to interpret our own nonverbal behavior.

Trial lawyers can learn from the study.

Katherine James, a trial consultant and founder of Act of Communication in Culver City, Calif., is not surprised by the study’s findings but is still a strong advocate of using videotape for witness prep – as long as it’s handled properly.

“Videotape does not lie. It’s not the videotaping of the witness and playing it back that’s the problem; the problem is: who’s coaching the witness?” she said.

On the other hand, Richard Gabriel, trial consultant for Decision Analysis in Los Angeles and a columnist for Lawyers USA, uses videotape selectively in witness preparation.

“I’ve found it to be useful only in particular circumstances,” depending on the personality of the witness and the specific goal for the witness, he said.

Here are some do’s and don’ts of using videotape for witness prep:

• Do be judicious

  Videotaping may not be for every witness.
  Gabriel says he tries to assess a witness’s personality to decide if videotape would be productive.

  “I don’t find it useful where witnesses are shy, fearful or intimidated. I find sometimes they watch themselves and become more reticent or more intimidated and if your goal is to build confidence and make them feel more self-assured, it can be counterproductive,” Gabriel said.

  James said it is only the rare case in which she does not employ videotape for witness prep, but that she will not use it if a witness suffers either extreme physical disfigurement or emotional distress.

  The best reason to use videotape is to correct a witness who comes off as arrogant, combative or defensive, said Gabriel.

  “For somebody who has a lot of baggage or has hidden agendas and is just not seeing it, [videotape] is a great corrective tool, because if you just give verbal feedback a witness can’t see for himself,” he said.

  Another good use of videotape, said Gabriel, is to correct a nervous mannerism, such as a shifting glance, that could be misinterpreted as deception.

• Don’t do it yourself

  Brian LaBovick, managing partner at LaBovick & LaBovick in West Palm Beach, Fla., frequently uses videotape for preparing witnesses for trial but recommends against a lawyer taping his or her own client.

  “You develop a personal relationship with a client before trial and he no longer trusts you as an objective source. You need people that [your witness] will believe are objective,” he said.

  Another reason not to do it yourself is that many lawyers don’t have the tools to make constructive criticism using videotape, said James.

  In order to add an objective voice into the critique, LaBovick brings in a mock jury and another lawyer to do a mock cross-examination, and then videotapes the jury’s deliberations.

  “Sometimes hearing a jury say, ‘I didn’t believe him’ or ‘I thought he was lying’ shocks a witness into recognizing that what he thinks he is saying is not what they are hearing,” said LaBovick.

• Do warn your client first

  Playing back videotape to a witness can do more harm than good if the witness isn’t warned first.

  Most people who see themselves on videotape for the first time are too overcome by self-consciousness to take constructive criticism.

  “Before you show somebody [a video of him or herself], you have to prepare them for the fact that everybody looks bad on video. I tell them, ‘People will not judge you on your physical aesthetics but on the content of your words, your body language and your eyes,’” said LaBovick.

• Don’t be over-critical

  A common error in critiquing the videotape of a witness is to rattle off a laundry list of what not to do.

  But this will only alienate a witness.

  “They will shut down and it will make them less likely to accept what you say or to trust you,” said James, who added that the video critique is best approached as an interactive dialogue with witnesses, so they can begin to comment on themselves.

• Do be positive

  It’s important to begin a video critique with positive comments.

  “Don’t show them the bad stuff first. Make sure you do positive reinforcement first, because seeing yourself on videotape can be pretty daunting,” said Gabriel.

  “Think of whatever positive thing they are doing, whether it’s ‘I love the way you think before you speak,’ or ‘I really like the way your face looks very relaxed,’” said James.

  Pointing out strengths will not only build your witness’s confidence but also it will show him or her how to model this behavior, whether it’s voice quality, eye contact or other positive body language, in other parts of the testimony.

• Don’t rush to the content

  Another common tendency in video critiquing a witness is to go straight to the content, such as pointing out when a witness answers a question incorrectly.

  But a witness will learn more effectively if the style and content are critiqued together while analyzing the tape, said James.

  She also noted that the first videotaping should be no longer than ten minutes.