On the Costs of Simulated Witness Preparation
We are living in a simulation.
A recent episode of the Modern Wisdom podcast opened with that position, and the guest, Harvard social scientist Arthur Brooks, gave it a nuanced turn that I found interesting. His position was that so much of modern life has become mediated, performed, and experienced through a screen, and the one thing that cannot survive that translation is the things that matter most. Meaning and connection.
It occurred to me that this should be relevant to any lawyer who is preparing a witness for testimony, whether it is for deposition or trial.
Often, witness preparation is treated as a technical exercise. Documents are gathered, questions are drilled, and rough answers are smoothed. The witness has been wound up and pointed at their deposition (or trial testimony).
This process is at best, rehearsal. It is certainly not witness preparation.
Rehearsal focuses on the testimony. Preparation focuses on the witness. Rehearsal asks what the answer should be. Preparation asks whether the person providing the testimony can remain credible when the questioning is hostile, the environment is tense, and the easy answer would sink the case. Rehearsal produces a witness who sounds coached, which is close to the worst thing a witness can sound. Preparation produces a witness who sounds like themselves on their best day.
Witness preparation, when done properly, is not about winding up testimony. It is about connecting with a person.
That connection is the actual work, built through everything that passes between two people who are fully present with each other. You watch the leg that starts bouncing when a certain subject comes up. You catch the eyes that drop before the voice does. You hear the silence that is fear rather than confusion, and you know to slow down instead of pressing. If you are truly skilled at witness preparation, those signals alert you to much of what is going on in the witness’ mind, and you can formulate a plan to deal with those issues. This is why witness preparation is never a plug-and-play exercise, as everyone reacts differently to stressful situations.
Now, let’s talk about Zoom (or, sigh, Teams).
Communication through a screen does not so much affect your locations as it thins your experience. It crops a whole person down to a head and shoulders. It turns a meaningful pause into a question about bandwidth. It strips out the small, constant signals that two people exchange when they share the same space, and it quietly hands the witness an exit for their anxiety and stress, because someone who can mute, look away, or glance at another monitor is never fully engaged.
The exchange in the form of questions and answers still happens; it just occurs at a fraction of the depth required to properly prepare a witness to testify.
I do not mean this as a black-and-white argument against online witness preparation sessions. A remote session is far better than no session, assuming again that the goal is to prepare the witness, not to train the witness. When the witness is across the country, when the calendar will not bend, when the alternative is a witness walking in to testify cold, online preparation has an important place, and you should use it without apology.
But a thin experience should never be mistaken for a good enough one. The difference between the two is not academic.
A single deposition can reset the value of an entire case. A witness who holds up can turn a shaky claim into a credible one, or a frightening exposure into a manageable one. A witness who comes apart does the reverse, and the transcript does not have an expiration date. Poor performance during a deposition is ultimately etched in stone, and that etching can exact a high cost.
And if the case goes to trial, the witness will rarely be testifying through a screen. They will be a few feet from the people deciding whether to believe them, with nowhere to hide. The presence they need in that moment has to be built in advance, in an experience rich enough to resemble it. My witness preparation mantra has always been that we must "practice like we will play" for this very reason.
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