The witness is somewhat slumped in the chair as the cross-examination bears down on him. As the defendant, he knows he is the focus, the civil law’s version of “the perp.” As he is confronted with each of the plaintiff’s accusations, and each of the expert witness’s criticisms, he is sinking lower and lower in the chair. His answers become shorter, his volume drops lower, his eyes look away, and his chin points down to the table. The actual content of his answers might not be all that bad, but nonverbally, his communication is coming across as a confession. The dominant expressed emotion is shame, which is what we would expect of someone who has done something wrong. So it reads as “guilt.”
Shame can be a common feeling for a witness, particularly (but not always) when they’re the defendant. The simple force of accusation that comes with someone trying to find fault with your statements or your actions is a force that can be internalized. One might minimize the occurrence of genuine shame, seeing it as rare in the professional world of civil litigation. New research, however, points toward shame being a cultural universal which is hard-wired into our evolution. Based on a cross-cultural research project discussed in a recent ScienceDaily release, human feelings of shame follow essentially the same pattern in societies around the world, because shame played an important role to our ancestors who lived in hunting and gathering social groups. Even today, feelings of accusation or perceptions of social disapproval can cut deep, even if, logically, we understand that we have done nothing wrong. In this post, I’ll take a look at what shame is, how it can undermine witness credibility, and what the prepared witness ought to do about it.
Shame is Human
The universality of shame in human societies is what the study (Sznycer et al., 2018) looked at. Researchers from the University of Montreal and UC Santa Barbara’s Center for Evolutionary Psychology looked at perceptions of shame in 15 small-scale societies around the world that are linguistically, ethnically, economically and ecologically diverse. In each of these societies, they observed the same support for a theory positing that pride and shame are both internalized estimates of the expected approval and disapproval from others. What they found is that, “Feelings of shame really move in lockstep with the values held by those around you, as the theory predicts.”
Shame, rather than being just a situational emotion or a product of one’s culture, is really part of the human condition, hard-wired into our evolutionary development within social groups. “In a world without soup kitchens, police, hospitals or insurance, our ancestors needed to consider how much future help they would lose if they took various actions that others disapprove of but that would be rewarding in other ways,” according to lead author Daniel Sznycer, an assistant professor of psychology at the University of Montreal. “The feeling of shame is an internal signal that pulls us away from acts that would jeopardize how much other people value our welfare.”
Shame is Independent of Fault
We expect someone to have that feeling of shame when they believe they’ve done something wrong. However, that is not an essential ingredient. “Moral wrongdoing is not necessary,” Dr. Sznycer notes. “In other research we showed that individuals feel shame when others view their actions negatively, even when they know they did nothing wrong.” The reason for that is that shame is a social rather than a personal evaluation: It isn’t our own perception we are worried about. As Dr. Sznycer continues, “The function of shame is to prevent us from damaging our social relationships, or to motivate us to repair them if we do.” For that reason, even when we know or believe that we’ve done nothing wrong, but know that we face disapproval, we will still internalize a feeling of shame as a kind of display of social submission — a form of tacit apology that we hope will keep us ‘in the tribe.’
And Shame is a Bonanza to the Cross-Examining Attorney
That social and evolutionary role of shame can explain why, for example, a physician defendant can understand, intellectually and professionally, that she provided the best care that a situation allowed and still feel emotional shame at being the target of a lawsuit, with attorneys, a patient and a family, and opposing experts all pointing the finger at her. Right or wrong, it is still a form of social disapproval and exclusion. And the resulting emotions can create a significant barrier for the witness testifying in trial or in deposition. Doctors in these cases need to come across as competent in their expertise and confident in their decision. An internalized attitude of shame can instead make them appear remorseful, self-doubting, and simply guilty. Plaintiffs’ attorneys know that, of course, and will exploit it if they can by exposing the witness’s vulnerabilities, and by pushing them to relive the moments that cause the greatest levels of distress.
So Confront Shame in Three Ways
Don’t just tell a witness to buck up and be strong, and don’t just address the facts and the law. If the role the case places that witness in is likely to evoke some feelings of shame, address it.
Rebuild Confidence and Competence
Part of the message is that you did nothing wrong. Based on the research, that’s not all of it (because social disapproval can be independent of personal disapproval) but it is part of it. Witnesses need to get to the point of accepting that they did their best, they acted reasonably, and what is driving the case is a bad outcome, not a bad action. Often experts can help in getting that message through. In a medical negligence case, for example, it can be critical for doctors to hear from respected peers that they met the standard of care.
Focus on Social Good
The implication of the research is not to tell witnesses, “Feel better about yourself,” but rather to get them to “Feel more secure in society’s view of you.” If you are more or less universally viewed as a pariah (looking at you, Martin Shkreli), then that advice is no help. But in most other cases, there is a broader favorable context that can counterbalance the criticism coming from the limited team on the other side. To again use the example of a doctor defendant, it is important to remember that society, including juries, generally still hold doctors in high esteem. In the public view, doctors are well-trained and have a very challenging job. We hold high expectations, while also realizing that doctors serve an important social role and cannot be perfect.
Desensitize Through Discussion and Practice
Still, even as the witness might be able to rationalize the blame, the situation of being accused still elicits an emotional response. Those emotions, including some measure of shame, probably cannot be avoided. But they can become less acute over time. That is a reason to avoid denial, to frankly talk with your witness not just about the law, and not just about the practicalities of testimony, but also about how your witness is feeling. It is also a good reason to practice. The first time you sit through hostile questioning, it is likely to throw you. The tenth time, not so much. So practice makes perfect, and practice can also dull the feelings of exposure and shame.