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Preparing the Child to Testify in Civil Actions

Litigation can be an emotionally draining procedure for all parties involved. Months of discovery and preparation by counsel culminate in one final showdown to zealously represent their client. Jurors - having been ripped from their daily lives - are carefully examined and deselected so that they may reach a determination on the case. The judge sits to render impartial rulings. The litigants and their families rely upon their attorney to advocate their side to success. The process is exceedingly difficult on lawyers and their adult clients. Imagine that your client is a child who must testify in a highly upsetting case. How do you prepare a child witness without further traumatizing him and to convey the evidence well enough to convince a jury?

In many ways, the vulnerable child witness can be viewed like any vulnerable adult witness. Those who are easily led or swayed can be counseled to gain confidence to stand their ground, the nervous witness can be trained in techniques to calm himself, a soft-spoken interpreter can be hired to communicate for a non-English speaker, and the aid of experts can be enlisted to speak for the brain-damaged plaintiff. In addition, relaxation therapy, speech and presentation coaching, and similar techniques can be used to help clients improve how they come across to jurors. But, how can you deal effectively with the severely injured child and the child whose defense mechanisms are so forceful that they are, as I term it, walking with walls?

A child in these circumstances already has been through a traumatic event that may necessitate his presence in the courtroom. He must be prepared as best as possible to remain calm and to provide testimony that is reliable, accurate and truthful. Oftentimes in civil trial, a child will be called upon to reenact an accident or to recollect a parent's death or a scary event. How does the attorney get the child witness to reveal this kind of emotional testimony without further traumatizing or frightening the child?

The Human Connection

Just as the rabbi prays with his congregation and the teacher is patient with her students, so also must the attorney form a close bond with her clients to achieve the best results. To that end, the attorney first must know how to communicate effectively with all people, especially with children. Unfortunately, however, law schools teach procedures, omitting the critical human element that people - attorneys, clients, judges, witnesses, and juries - undeniably are the real keys to litigation. Few areas of study and application are more important to the attorney than witness preparation techniques. The client, the most critical component of the case, must be the attorney's priority.

When a child is the client, one important step is for the attorney to interact more on the child's level. I sit below children when talking to them. If the attorney doesn't feel comfortable sitting on the floor below the child, she can sit on a chair that is slightly lower than the child's. In this way the child won't feel intimidated but will feel more in control. I also am careful to use small words and short sentences and to speak patiently, in an even, rhythmic tone. I try to remember what it's like to be a child, how I wanted to be treated, and what I was able to understand; then, I proceed accordingly. Children are more perceptive than many adults assume them to be, and they aren't stupid. They don't like to be talked down to or forced to feel rushed, nervous, or otherwise uncomfortable, and they don't trust people who make them uncomfortable. Imagine that a person is talking to you and you can understand little of what he or she is saying. This would be especially difficult if you had to do something that you had never done before - something that could affect you for years to come.

It is critical for the attorney to establish trust in a relationship in order to bond with her client. Bonding with a child requires an even deeper and unselfish commitment of time, respect, sincerity, compassion, empathy, and patience. Only by applying these key human elements will the attorney bond with him, even to the point of loving him. Also, whereas the successful attorney is accustomed to spending quality preparatory time with the client immediately prior to deposition and at trial, she will have to be all the more committed and perseverant with the child witness, especially one who has undergone a traumatic event. Only in this way will she elicit the story that the child must tell, the truth that the jury wants to hear.

The key to unlocking this kind of testimony is found within the child himself. The attorney must act as legal advocate and mentor to her young client and must not take liberties in areas of therapy to which she is not qualified. True success in the courtroom is allowing the child to deal with the trauma and to move forward with emotional stability - regardless of whether or not the child ever takes the stand. The attorney must be perceptive in determining what kind of emotional and physical assistance is necessary for the child.

Involve a Therapist Early in the Case

Although the attorney must always be keen to the child's stability, when she perceives that the child may act as a witness, she must ensure that child's optimal mental health. Some children should never be put on the stand; others need to relive the experience time and again to be able to accept their reality. The moment the attorney determines that psychological help is necessary for her client, she should immediately enlist the aid of a child therapist to assist in the case.

The attorney's role in dealing with the child witness is to connect with her client as a mentor/advocate/confidant. The child can provide valuable insight into allowing the jury to understand the case. The attorney needs to know how to draw out this information and must stay close to the child to provide the "psychic comfort" that is so desperately needed.

What are the best approaches to get the child to reveal his experiences? The ideal scenario is when the psychologist and the attorney work hand in hand. The therapist will know when to move forward and when to back off. The mental health advocate uses different techniques in allowing the child to vocalize the events that transpired to cause the emotional trauma. There are no hard and fast rules regarding the types of techniques used in each situation. The therapist will evaluate each case and the stability and emotional maturity of the child. Following are some of the most highly respected therapeutic methodologies used in witness preparation today.


Psychodrama is one of the therapist's most valuable tools in breaking through a child's defenses to enable him to reveal painful memories. This therapeutic role-playing necessitates the involvement of the attorney to interact with the child in a manner to recreate the event to portray the child's grief or anxiety. Psychodrama has been used as a highly effective form of therapy since the 1920s. This process allows the creation of a therapeutic stage for the child to overcome his inhibitions and to "act out" his inner self in a spontaneous, creative way. The activity involves the dramatization of a personal tragedy in front of the attorney and should be conducted only by a trained psychologist licensed to practice psychodrama. The trained director helps to recreate scenes - the story - that otherwise might not be possible.

Creativity and spontaneity are power-packed assets at trial. Psychodrama, in using action instead of merely words, can be more empowering than other traditional verbal therapies. It reveals an undeniably accurate past, enables understanding while promoting healing, and tells the deepest truths for our client's greatest benefit. This type of courtroom communication establishes clear credibility and a powerful connection between the witness and the jury, and even between the attorney and the jury.

Role Reversal

Role reversal, normally a nonclinical application, is an incredibly advantageous technique used in psychodrama. In this commonly used technique, the lawyer can see and understand the situation through the eyes of her client, a potential juror, and the judge. Role reversal is exactly what the name implies. The lawyer adopts the role of her client, the child. By sincerely attempting to feel the pain and anxiety of the child, the lawyer is connecting with the child. During this form of therapy, the child freely inputs his emotion to "correct" the lawyer's interpretation of the pain the child suffered. By assuming the role of the child, the attorney is better able to understand and empathize with her client. This setup also sometimes brings out important information that otherwise may not be revealed.

Role reversal is an effective way to eliminate barriers of communication and to assist in developing close emotional ties between child and legal advocate that extends beyond the ordinary attorney/client relationship. In so doing, the attorney reveals her true humanity and trustworthiness, key elements that jurors seek at trial and that can produce more effective communication between attorney and judge. The impact of the attorney's storytelling is a way of connecting with the trier of fact in an empathetic and compassionate manner.

Play Therapy

Another technique, initiated by professional therapists in the 1920s and 1930s, is play therapy. Playing is obviously a necessary part of every child's life and growth. It offers excellent opportunities to release tension, to enhance self-expression, and to heal pain and sadness. Even two- and three-year-olds can exhibit and reveal unconscious fears through post-traumatic play. The child is asked to replay the events that transpired while the therapist evaluates the results. Children do not have the ability or the vocabulary to express themselves. How do you ask a six-year-old to tell about the loss of his father? One method of play therapy is to observe the interaction between two dolls: one doll represents the child while the other doll represents the father. The therapist observes the interaction between the two dolls and can testify at trial regarding the psychological implications inherent in those observations. The child receives the benefit of being allowed to express his feelings without being traumatized further in a courtroom setting.

In one particular case, we found that the father of the six-year-old child had sung a lullaby to him every night at bedtime. After the father's wrongful death, the boy could not sleep alone; he wet his bed and refused to listen to music at night. How would such circumstances affect a young man who is dating or as a father? The boy never spoke about his father but associated his dad with songs, the bed, and going to sleep. Intensive play therapy, using the two dolls to represent the boy and his father, was needed to deal with the child's grief of losing his father. Despite intensive therapy, ten years later the boy still has sleep disorders and may have them for the rest of his life. These disorders were reflected in his damages. Our intervention was crucial to allow him to begin to heal.

Walking with Walls

Psychodrama is a wonderful way to connect with persons who are 'walking with walls.' The child experiences an unsettling event and builds defense mechanisms to cope with reality. Several years ago I was called in to assist in a wrongful death claim. The case involved a hard-headed and overtly brash seventeen-year-old girl who had lost her father to carbon monoxide poisoning. Her father, a bar-hopping sailor, was somewhat of a character himself. The girl often sought his fatherly counsel after fights with her mother, who had custody of her. Following his death, the girl felt that she had no one who understood her, and her behavior became increasingly volatile. Fortunately, her attorney understood that a staff of professional therapists was critical to understanding her anguish over losing her father. He knew that her harsh demeanor was not going to endear her to the jury; her perception was her reality.

Using psychodrama methodologies, we were able to understand how deeply she missed her father. We utilized a technique involving an open letter to her father wherein we asked her to address what made their relationship so special and to use five words to describe him. She revealed that her father was akin to an imaginary friend who represented the healthy part of her. Through strictly controlled methods, we were able to break through her "walls." Once again, she became a soft-spoken young lady, behaving as she had when her father was alive. The transformation was so incredible that the jury was able to empathize with her and to comprehend the severity of her pain. By understanding her mental crisis, her attorney was able to think not as a lawyer but as a human being and, then, to persuade the jury to do the same.

Systematic Desensitization

Systematic desensitization is a technique used to reduce the witness's anxiety. The idea is to associate the anxiety-provoking stimuli with peaceful relaxation. To this end, we use imagination first with progressive relaxation techniques. Then, we do it in a real-life setting. The client's anxiety can involve fear of the dark or of testifying and/or of explaining the ordeal that caused the original anxiety. Imagine how upset a child may become by having to explain something to an adult, especially to a stranger.

I once consulted in a case involving an adorable nine-year-old girl who had been hurt badly in a car accident and had lost her foot. From that child came the most compelling testimony regarding the painful surgeries that she had undergone, the fear of additional surgeries, and the fear of being made fun of by other children. Her insightful testimony stood to make her case worth millions more than originally had been envisioned. However, one roadblock stood in the way: she was afraid of the courtroom. We discovered that, for her, the key was relaxation. Using relaxation techniques in a neutral setting, we encouraged her to imagine herself entering the courtroom, walking to the witness stand in a relaxed state of mind, and confidently telling her story in her own words. We repeated these techniques in a dry run within an empty courtroom. Our hard work paid off. At trial, she won the hearts of the jurors.

Within the past decade a similar successful treatment technique, known as Traumatic Incident Reduction (TIR), has been advocated in certain severe cases to connect with child witnesses. TIR is rooted in psychoanalytic theory and desensitization methods. In this technique, the child repeats the traumatic event under safely structured conditions to permanently eliminate the negative effects of a past trauma. If it is determined that the child can safely and willingly testify at trial, this repeated rehearsal allows him to feel comfortable. The smell, the surroundings, and other things foreign to him are rehearsed until he is comfortable to tell his story in the courtroom setting. Again, this type of therapy must be conducted by licensed mental-health professionals in a safe, distraction-free environment, over a series of therapy sessions to effectuate desired results.

Gestalt Therapy

Yet another useful tool in connecting with the child witness is found in role-playing through Gestalt Therapy, in which the child faces his anger or fear through the use of inanimate objects. In this technique, the child sits opposite an empty chair, which represents his fear or anger. He expresses his feelings to the object and learns to overcome his anxieties. In this form of directive therapy, a therapist structures and creates the play situation in an attempt to provoke the child's unconscious behavior - challenging the child's defense mechanisms and leading him in positive directions. In psychology, we know that experience is a compound of elements. This theory involves reconstructing a traumatic experience, identifying its elements, and working to understand how the parts are related to the whole. In so doing, we then are able to understand why each remembrance of the event or a part thereof continues to be traumatic and to work to desensitize the patient's emotional reactions to it over time.

For example, if a child were hit by a truck while riding his bike, he might develop a fearful association with certain sensory perceptions - things he saw, felt, heard, smelled, or even tasted during the accident. It could be the sounds of brakes squealing and metal crunching, the feel of asphalt and his bones breaking, the smell of rubber burning, or the taste of his own blood. It isn't just the sight of the truck or the impact of the accident that he remembers or a fear of riding his bike. It's the underlying elements that unite to form, to relate to, and to represent the whole of the experience. These elements are then identified, understood, and worked through in order to rid him of all such associated fears and anxieties. Imagine how powerfully this child's testimony would connect with the jurors' own fears and emotions. Involving the jurors in this child's story will help them to see what he saw, hear what he heard, and feel what he felt.

Child in the Courtroom

If children must testify at trial, attorneys must educate them regarding what to expect and to make them comfortable, even to the point of visiting an empty courtroom. Walter Peters, in "Preparing Children to Testify" (Trial, May 1999), explains, "Even if you quiz the child or role-play many times, the child will probably still have questions or doubts. You should ask the child how he or she feels about going into court to be a 'helper' and allay any irrational fears the child may have."1

Child witnesses also can be taught to deal successfully with complex courtroom language and to resist suggestion at trial by opposing counsel. To a child, the courtroom is filled with highbrow language or even ridiculously phrased questions. Fortunately, courtroom preparatory programs can be highly effective. Studies performed by Walter Peters and Narina Nunez, of the University of Wyoming's Department of Psychology, suggest that even preschool children may benefit from preparation programs known as comprehension-monitoring training (CMT).2 Through CMT, children can learn about the courtroom and how to combat incomprehensible questions. For example, this training can help children to counteract ridiculous, yet possibly tricky, situations such as the following.3

Opposing counsel: What is your date of birth?

Answer: July 15th.

Opposing counsel: What year?

Answer: Every year.

A child looks forward to celebrating his or her birthday every year, right? How else could the average child be expected to respond? The next example probably is less confusing but equally ludicrous.

Opposing counsel: You say the stairs went down to the basement?

Answer: Yes.

Opposing counsel: And these stairs, did they go up also?

What would a child make of that one? A likely response could be, "What?" or even "Duh!"

It's clear that children need the assistance of professionals to cope with confusing questions that may be asked of them at trial. Peters and Nunez concur that CMT may be a useful tool in enhancing children's testimony. A comfortable, well-prepared child is likely to give favorable testimony to achieve the desired results.

Success With the Child Witness

The ordinary witness must be prepared thoroughly and extensively for optimal results at trial. Putting a child in front of a jury, or eliciting the story from the child for professional testimony or in videotaped presentation, requires special preparation and the use of "kid gloves." The attorney should evaluate and assess the child's emotional well-being and work closely with a professional therapist to gain the child's trust. By understanding the child's pain the attorney will be compassionate and empathetic of the child's cause. The attorney, together with the therapist, needs to focus on therapeutic techniques to help the child overcome his fears, frustration, and anxieties. Like the rabbi who guides his congregation to enlightenment and the teacher who strives to communicate an understanding and love of knowledge, the attorney who truly loves her client and steps into his shoes can convey his emotions more effectively to a jury. In so doing, the attorney can present her strongest and most persuasive case.

1 Walter W. Peters, Preparing Children to Testify, TRIAL, May 1999, at 58, 62.
2 Walter W. Peters & Narina Nunez, Complex Language and Comprehension Monitoring: Teaching Child Witnesses to Recognize Linguistic Confusion, 84 J. APPLIED PSYCHOL. 661 (1999).
3 Louis Kahn, Order in the Court - Wacky and Zany Courtroom Hijinks, available at