In part 1 of this article, we introduced the theory of operant conditioning, which explains how behavior can be influenced and modified through positive or negative consequences. In part 2, we discuss specific ways attorneys can apply operant conditioning in witness preparation. 

Operant Conditioning in Witness Preparation

Attorneys can apply operant conditioning techniques during witness preparation to enhance the quality of testimony and help witnesses perform effectively. Here are some ways in which it can be utilized:

a) Positive reinforcement: Attorneys can reward or reinforce witnesses for providing clear, concise, and accurate responses during practice sessions. Positive reinforcement can involve verbal praise, acknowledgment, or even tangible rewards. In witness preparation, verbal praise of the witness’s effective performance is essential to their development. By reinforcing desirable behaviors, attorneys can encourage individuals to repeat those behaviors in the future.[7] 

b) Negative reinforcement: Witness preparation can involve attorneys removing or minimizing potential stressors or distractions that may hinder the witness's performance. By creating a comfortable and supportive environment, witnesses can feel less anxious or overwhelmed, which can positively impact their testimony.[8]  For example, attorneys should consider removing unnecessary people from the witness preparation session (staff, supervisors, extra attorneys, other witnesses, etc.) to better simulate the deposition environment and alleviate any pressure created by other observers.  

c) Punishment: Attorneys can guide witnesses to avoid ineffective or undesirable behaviors during practice sessions. By pointing out and addressing any errors or weaknesses in their responses, witnesses can learn from their mistakes and understand the importance of providing accurate and reliable testimony. It is crucial that punishment, in the form of constructive criticism, be applied immediately after an ineffective answer or undesirable behavior occurs. Any delay will weaken the impact of the punishment and minimize witness improvement. Additionally, punishment must not be too harsh. Witnesses who receive extreme criticism from the legal team may withdraw, lose confidence, or become angry.  

d) Shaping behavior: People can be gradually guided to improve any skill by breaking down the desired behavior into smaller, manageable steps.[9]  Attorneys can provide witnesses with feedback and reinforcement as witnesses make progress in mastering each step, helping them build confidence and competence in delivering their testimony. Immediately throwing witnesses into the cross-examination fire is unnecessary and can be harmful to them. Rather, isolating key questions and formulating effective responses is a more appropriate first step in training that is less threatening to the witness.  Exposing witnesses to expanded and aggressive cross-examination tactics is an important part of their development; however, it must be done after witnesses have established the foundational cognitive, emotional, and behavioral testimony skills.  

e) Consistency and repetition: By consistently reinforcing desirable behaviors and addressing any issues, attorneys can help witnesses develop a pattern of effective testimony. Through repeated training sessions, witnesses can become more comfortable and familiar with the process, leading to improved performance during actual testimony.[10]  One training session is rarely sufficient to effectively train witnesses for testimony. In these authors’ experiences, two to three meetings are the ideal number of training sessions (5-6 hours each) for optimal witness performance.  Those witnesses with special circumstances, such as significant emotional issues, language barriers, or intellectual challenges may require additional training sessions to be fully prepared. 

Conclusion

Overall, the application of operant conditioning principles aims to shape witnesses' cognitive, emotional, and behavioral patterns. However, the goal of the end user is much different. When used by opposing counsel in depositions, operant conditioning helps ensure witnesses provide ineffective and unreliable testimony. In witness preparation, operant conditioning helps ensure witnesses provide effective and reliable testimony. By reinforcing desirable behaviors, minimizing distractions, addressing weaknesses, and providing guidance and support, attorneys can enhance the quality of their witnesses' deposition or trial testimony.

References:

[7] Kazdin, A. E. (2018). The Kazdin method for parenting the defiant child. Houghton Mifflin Harcourt.

[8] Miltenberger, R. G. (2015). Behavior modification: Principles and procedures. Cengage Learning

[9] Cooper, J. O., Heron, T. E., & Heward, W. L. (2020) Applied behavior analysis. Pearson.

[10] Miltenberger, R. G. (2015). Behavior modification: Principles and procedures. Cengage Learning