Nordstrom: Exploring a new method of witness preparation using AI

Witness preparation, encompassing any advice or training provided to enhance the quality of sworn testimony, is a cornerstone of effective legal practice.

Competent attorneys recognize the critical importance of preparing witnesses for both depositions and trials, ensuring they understand the process, anticipate potential lines of questioning, and learn strategies for responding to tough inquiries. This duty stems from a duty to provide competent and diligent representation.

See, for example, the Indiana Rules of Professional Conduct R. 1.3. The American Bar Association has also issued Formal Opinion 508, addressing the ethical considerations surrounding witness preparation. The ABA defined “effective preparatory guidance” as more than simply discussing anticipated testimony; it emphasized the need for comprehensive preparation to ensure accurate, credible, and truthful statements.

This article introduces an innovative model for witness preparation and methods of social sciences that integrates advanced artificial intelligence algorithms to optimize witness statements. This method is designed to improve the quality of testimony for all witnesses expected to testify, whether laypersons or experts, while adhering to ethical and legal boundaries.

Successful attorneys have long recognized the value of thorough witness preparation. This process often involves reviewing anticipated questions and answers, clarifying the witness’s role in the case, and addressing concerns about the courtroom environment. The preparation process is not merely about rehearsing testimony but about empowering witnesses to deliver truthful, accurate, and persuasive statements.

The goals of witness preparation are twofold: Educating witnesses about the testimony process and Enhancing communication skills.

While traditional preparation methods are of questionable value, the integration of AI in addition to traditional witness preparation offers new opportunities to enhance the preparation process. By leveraging AI tools, attorneys can identify areas for improvement, provide targeted feedback, and optimize witness statements with unprecedented precision.

The AI method of witness preparation consists of three main stages.

Initial session

The preparation process begins with an initial session where the witness is directed to a distraction-free environment, usually a conference room. In advance of this session, the attorney prepares a series of key questions addressing the fundamental aspects of the case: who, what, why, when, and where. These questions are tailored to the specific facts and circumstances of the case. There, of course, are additional case-specific topics the attorney will want to discuss.

The witness then records their responses using a voice-to-text device, such as an iPhone 16 Pro or a compact recorder like the PLAUD, a standalone wristwatch-sized recording device. The recorded statement should thoroughly address all relevant topics, including:

• Date, time, and environmental conditions: Details such as weather, lighting, and location can provide important context.

• Physical evidence: The witness should describe any photographs, contracts, or other tangible items relevant to the case.

• Conversations and actions taken: Recollection of verbal exchanges or specific actions is critical.

• Ongoing implications: Witnesses should address any ongoing medical, emotional, physical, educational, or financial effects.

• Impact on personal relationships: For example, how the incident affected the witness’s family and social dynamics.

The witness is instructed to provide clear, truthful, and factual statements without exaggeration. This session typically lasts less than an hour but forms the foundation for subsequent analysis and refinement.

AI analysis

The recorded statement is then analyzed using AI tools to identify areas for improvement of the statement. AI algorithms can perform several key functions:

Keyword analysis: AI generates a word cloud visualizing key concepts and word frequency, helping attorneys identify recurring themes or gaps in the witness’s statement.

Emotional tone analysis: Sentiment analysis tools can also be used to evaluate the emotional tone of the witness’s responses, providing insights into their attitude and confidence levels. For example, AI may detect hesitation, frustration, or uncertainty in specific answers.

Content optimization: AI suggests ways to clarify or enhance the witness’s responses, ensuring their testimony is concise and impactful.

This stage provides attorneys with valuable insight to guide future preparation sessions.

Follow-up session

In the follow-up session, the witness reviews a transcript of their statement, initially without the attorney present. This allows the witness to reflect on their responses while identifying areas for improvement. The attorney then joins the witness to discuss the statement’s strengths and weaknesses as presented by the AI program.

During this session, the attorney provides constructive feedback throughout the session. Positive feedback is emphasized to build the witness’s confidence before addressing the specific areas for improvement while establishing rapport. This collaborative process ensures that the witness feels supported while making necessary adjustments to their testimony. The witness is then given the AI report to take home for further practice.

Finally, depending on the complexity of the case and the witness’s sophistication, additional sessions may be scheduled as needed. These additional sessions may also help address non-verbal communication, such as attire, posture, and body language, all of which play a significant role in juror perceptions.

Prepping expert witnesses

The AI Method can also be adapted for expert witnesses, who often face more rigorous cross-examinations. AI tools can analyze prior testimony, identify potential vulnerabilities, and fact-check statements to ensure their consistency and accuracy.

Additionally, some advanced AI tools can evaluate micro-expressions and other facial cues from video recordings, providing insights into a witness’s emotional reactions and perceived truthfulness. These tools are particularly useful for assessing how expert witnesses may be received by jurors.

Despite the many positive features of AI technology, it is important to note that AI is a tool to assist attorneys, not a replacement for human judgment. Attorneys must carefully integrate AI-generated insights into their broader trial strategy, ensuring the witness statements align with the case theme and all ethical standards.

Witness preparation is an essential component of trial advocacy, beginning with the initial contact with the client and continuing throughout their representation. While the process requires significant time and resources, the benefits far outweigh the costs. Thorough preparation enhances the witness’s credibility, reduces anxiety, and increases the likelihood of favorable case outcomes in both settlements and trials.

The integration of AI into witness preparation, as demonstrated by the Nordstrom Method, represents a significant advancement in the way witnesses are prepared.

By leveraging AI tools, attorneys can optimize witness statements, identify areas for improvement, and provide targeted feedback with unprecedented precision. This innovative approach not only enhances the quality of testimony but also improves the chances of settlement and trial success and eliminates attorney stress knowing that the witness will perform as expected in court.

Neglecting witness preparation can compromise a case, leaving unprepared witnesses vulnerable to cross-examination and misinterpretation. By embracing new technologies and methodologies, attorneys can ensure their witnesses are well-prepared to provide truthful, credible, and persuasive testimony.•

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Rodney R. Nordstrom, Ph.D., J.D., works as a trial psychologist primarily in Illinois and Indiana. He can be reached at [email protected]. Opinions expressed are those of the author.