On Monday, Deliberations put up an interesting post on witness prep — Why Your Witness Didn't Get Better After Watching Herself on Tape. It cues on humans' trouble in reading our own body language. Blawgletter says check it out.
The study that the post cites looked at how well subjects scored on self-evaluation of their non-verbal cues (facial expressions, hand on face, jumpy eyeballs, rocking). The subjects did badly.
We'll add that putting a client-witness on video should come, if at all, at the end of the prep. By then, you'll have already talked with your client-witness about:
- The witness's background and role in the underlying events;
- The claims and defenses; and
- Guidelines for giving truthful and effective testimony.
If you don't lay that crucial foundation, don't bother with the video.
But if you do the necessary hard work before taping, don't start scrimping now. Write out the hardest questions. Ask them and let the witness respond as the camera rolls. Review with the witness what went right and what went wrong. Then repeat. Two more times.
By the way, privilege generally protects your sessions with clients but may not apply to non-clients. Like experts.