Some witnesses approach their deposition or trial testimony with unmitigated dread, while others treat it as a walk in the park. While the scrutiny and possible entrapment can be terrifying to some, it just doesn't register for others. We would like to think that the happy medium is a point right in between that under-confidence and overconfidence. But it isn't. The sweet spot actually leans a bit to the overconfident side. That's because confidence is one of the most widely used external cues to a witness's credibility. Even when confidence isn't quite warranted -- not by experience, knowledge, or grasp of the situation -- it will still improve the witness's performance to have greater confidence.
This "fake it until you make it" dynamic is backed up by the social science as well. A group of researchers (Anderson, Brion, Moore & Kennedy, 2012) conducted six experiments looking at the intersections of confidence and competence -- and specifically situations where the former exceeds the latter -- and found that even unwarranted confidence serves as a strong cue conveying both social status and competence. The lead author, Dr. Cameron Anderson, explained in a piece in Psyblog that even though overconfidence conveys some disadvantages, the benefits seem to outstrip the costs. Overconfident people tended to speak more often, use a confident tone, give more information and answers, and act relaxed and calm. Rather than being perceived as narcissistic, the overconfident were actually seen as more likable. This comes down to social selection. The study authors concluded, "One of the most basic questions for students of human social groups, organizations, and societies, is the question of how we select individuals for positions of status. Although we may seek to choose wisely, we are often forced to rely on proxies for ability, such as individuals’ confidence." This finding carries an important message for witness preparation, with some attorneys feeling that it is their job to put the fear of God into the witness and show them how bad it can be. For a few witnesses, that message might be necessary, but for most witnesses, the more important message is going to be, "You've got this"...even when they haven't quite got this. In this post I will share a few thoughts on when a little overconfidence might help the witness and when it might hurt.
Where Witness Overconfidence Helps
Given the stakes, no witness should feel perfectly confident. But there are a few ways it can help to feel a little more sure than, perhaps, the circumstances would warrant.
Trust Your Own Words
The witness who is scared or too aware of everything that can go wrong is easy for opposing counsel to lead, because the simple "Yes," or "No" can seem like the safest answer. The witness whose confidence has been bolstered, however, will answer in a full sentence using their own words, and not opposing counsel's, and will fight back against the unfair inference when necessary.
Whether merited or not, certainty sells. The witness who buries their statements in unnecessary doubts or qualifiers sabotages their own credibility, while the witness who speaks with no hesitations, no symbolic qualifiers, and no other "tee ups" will be viewed as more competent and more credible.
Focus on the Jury
It takes some heightened confidence to look your audience in the eye, particularly when their role is to judge your truthfulness and merit. But gaze aversion conveys insincerity or duplicity. Ideally, the testimony in court should be a three-way conversation with questions coming from the attorney, but all of the answers going directly to the jury.
Show Higher Energy
Stress and fear can cause a witness to seem static, constrained, or just dull. But that low energy drains credibility, because our view of whether a speaker is believable and likable is driven not just by perceived competence and truthfulness, but also by dynamism. In addition, psyching up is also a good antidote to stage fright.
And Where Witness Overconfidence Hurts
Study results aside, if we were to say, "The more confidence, the better," that is a recipe for the kind of arrogance that can lead to mistakes as well as lessoned credibility from the jury. So there are a few areas where overconfidence isn't a virtue.
When You Don't Know the Answer
Guessing or pretending to know is always worse than not knowing. If you do not know the answer to a question, then the right answer is always "I don't know."
When You Come Off as Arrogant
A little overconfidence in your attitude will not necessarily come off as arrogance. Rather it is your behavior that sends that negative message. Add a smirk or other indications of contempt for others, and you drain your likability.
When You Talk Over Their Heads
The goal is communication, and if you are using jargon and impenetrable language to show how educated or intelligent you are, or to demonstrate your affinity with some kind of in-group, it doesn't help. No matter how much of an expert you are, the goal is to keep it simple.