Working with witnesses with ADHD can be challenging. However, it does not have to be so difficult. The secret is understanding a few things about ADHD and using some of the recommended strategies set out below. ADHD is a neurodevelopmental condition. It is not a character flaw or willful misbehavior. Stress aggravates ADHD. Consequently, it is important that attorneys working with witnesses with ADHD communicate and act in a supportive manner to reduce witness stress.

Lateness (for everything)

People with ADHD are often time blind. This means that they cannot prospectively estimate how long something will take. For instance, they can have a hard time estimating how long it takes to get from their home to your office. You can help your witness estimate time more accurately, by breaking things down. For instance, instead of asking the witness how long it takes to get from their home to your office, ask how they get to your office step by step. By that I mean include walking to their car, making stops along the way, driving to an expressway, exiting, finding parking and walking to your office. Then take each step and have them estimate how long each step will take. By adding each specific task, You are likely to get a more accurate time estimate than if you had simply asked how long the journey took. Add a cushion of time for things to go wrong, and you have your travel time. Finally, work backward with the witness to figure out what time they need to leave their home in order to get to your office or court on time.

In Witness Preparation:  Getting Accurate Time Estimates

Estimates of passage of time can also be inaccurate In witness preparation. For instance, when you ask witness how long something took, the response doesn’t make sense or contradicts other witness testimony (too long or short). People with ADHD experience time differently than neurotypicals. When they are interested (positively or negatively) time can pass rapidly. When they bored, it stretches out. The witness isn’t lying when their time estimates of how long something took are overly long or unrealistically short. It’s how they perceived the passage of time. You can use the same strategy as above to improve the accuracy of the time estimate or use corroborating evidence.

Emotional outbursts during witness preparation

Witness gets overly emotional or frustrated with witness preparation. Hit the pause button. People with ADHD can experience emotional dysregulation when they are under stress. The witness may need to process verbally with you or may need to stop and go for a walk to clear their head. Sometimes, in a calmer moment, it can be helpful to ask the witness how they self-calm and what you can do to support it. It can also help to set a start and finish time. If the witness knows that they will be released in a set amount of time, they are able deal with their emotions better.

Forgetfulness

Witness forgets important facts. This can be due to working memory issues which are likely to occur in stressful situations Explain that you can refresh recollection when they have brain freeze and practice it. Just that simple act can relieve enough stress that the witness’s memory improves.

Restless movements

While hyperactivity diminishes with age, some people with ADHD self-calm through movement. In your prep session, you can allow the witness to move around or even do walk and talk to get them to focus. For some witnesses, doodle pads or fidget toys can help. In court, you may want to consider disclosing your client’s condition and request reasonable accommodations which can be fidget toys, frequent breaks or doodle pads.

People Pleasing

Some people with ADHD want to please you with their answers. They are looking for praise. The witness may even ask you how you want them to answer the question. Obviously, this is an ethical minefield. If the witness asks how you want them to answer, there is only one possible answer: “truthfully.” Give them praise for how they are handling themselves, not for what they are saying. For example: “the way you stayed calm and thought about your answer when my associate was cross-examining you, was very effective.” People pleasers have to be coached not to engage in those behaviors on cross-examination.  If you spot it, call it out.

Non-Responsive Answers

You asked an open-ended question (“what happened next” or “did anything unusual happen that day”) and the witness’s response, while true, had nothing to do with the matter at hand. If the question is too broad the witness with ADHD might not know how to answer it and may respond by talking about something unrelated. Ask focused open-ended questions (after you heard the tires squeal, what happened?) (When you entered the classroom, did you notice anything unusual)

If you are interested in learning more about working with witnesses or clients with ADHD, you can schedule an appointment with Rosemary Hollinger.