“Don’t Take That Tone With Me!” Working with Witnesses to Improve Performance



By Jill D. Schmid, Ph.D.

When you were growing up did your mom or dad ever say that to you? Do you say it to your kids? My son is a pro at turning a relatively innocuous response into a mordant-laden one simply through his tone. The answer “We’re going to the movies,” reads innocent enough until tone is added by the 17-year-old who is completely taken aback that his mom would dare ask where he and his friends are going. He’s equally successful at adding a charming tone to any question asking for money, the car, or new Nikes.

For a wonderful example of the power of tone, look no further that this YouTube video of a 10-month old baby crying as he listens to his mom sing a moving and melancholic song. This sweet little baby isn’t responding to the words of the song (also moving); he’s responding to the tone — the way the words sound. He’s simply overtaken by the way she is singing, not what she is singing.

The fact that tone influences how a message is received is not a hard concept for people to believe. It appears, though, a difficult concept for some people to keep in mind when they are speaking. In other words, it’s hard to recognize your own tone and how it is influencing your message. If you’ve ever had to say, “That’s not how I meant it” or “You just took it the wrong way,” then it could have been your tone.

Getting witnesses to understand their tone is best done through video feedback during role-playing. The person needs to see and hear themselves to truly get that “how” they say something is just as important as “what” they say. “How” is not only tone, but also all the other non-verbal behaviors (e.g., gestures, eye contact, facial expressions) that are used. Tone, though, has its own special power. Even without any other non-verbal behaviors, tone can signal anger, evasiveness, confusion, and disinterest. It can stop a conversation or encourage conversation. It can hurt or it can heal.

A witness’s tone can turn a verbal “No” into an “I’m not sure, it could have,” which completely undermines their credibility. A dismissive tone can reinforce plaintiff’s case theme that a company didn’t care if consumers were injured. An angry tone tells jurors that this is not the type of boss they’d want. In many situations, witnesses often have tonal issues as a result of something very innocent, such as nervousness. However, jurors don’t perceive nervousness; instead they gravitate to something much less favorable and often it can be dishonesty. This happens all of the time with eye contact. Many nervous witnesses look down when they are testifying. It’s a common communication barrier that comes with nervousness. Jurors, though, tend to attribute the lack of eye contact to dishonesty rather than nervousness.

Conversely, the right tone, can establish credibility and rapport. Tone can establish a sense of friendliness, openness, and competence among other things. It can make a witness likeable. Once a jury wants to root for a witness, they will. This often entails ignoring, rejecting, or explaining away facts that go against the witness. Tone can help determine what jurors want to believe about a witness. Once that is determined, it becomes the filter for what they see and hear.

The power of tone is one more reason that role-playing must be part of a preparation session. You will not know how your witness will sound when responding if you don’t conduct a mock deposition or a mock direct and cross. When prepping a witnesses or even practicing your opening, video tape yourself. One of the times when you play it back, don’t watch. Just listen. What is your tone saying or not saying? Where could you add inflection? How could you use pauses? Where could you add a little emotion? Where should you take out the emotion? Is there any place that calls for a little more heat?

Some people think it is hard to change an individual’s tone. Some attorneys don’t believe changing tone is a realistic task for a witness preparation session. It may be difficult, but it is possible. Sometimes, it simply requires it being pointed out via the videotape. Sometimes it requires a lot of repetitive role-playing. If a witness is corrected enough times, they will start to change. The key is to provide the opportunity, through role-playing, to allow those repetitive corrections to occur.

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