August 15, 2016

Prepare Your Witness: Top 10 Posts

By Dr. Ken Broda-Bahm: 

18025616_sOne of the most common trial preparation activities is to prepare the witnesses. Even as trials become relatively rare in some areas of litigation, the need to get witnesses ready for depositions tends to stay strong. As common as that need can be, however, the mechanics of it can be taken for granted. We have written frequently on the best content and methods to convey to future witnesses. Here are ten of the top posts on the topic. 

OneBottom Line Your Deposition Advice: Four Rules

Listen, pause, use your own words, and then stop. Sometimes witness advice should be covered in detail, and at other times you just need to bottom line it. A week or so ago, I was arriving for a meeting with attorneys just as a witness was leaving. “Is there any simple advice you would convey before his deposition?” one of the attorneys asked. What I came up with on the spot is just that list of four: listen, pause, use your own words, and then stop. At the time, I noticed that the attorneys in the room wrote that list down in their own notes. Since then, I’ve used that simple quartet in a few other meetings with similar effects. So, I thought I might be onto something, and this may be a list worth sharing. If there is one sentence I would want witnesses to keep in mind as they head into a deposition, it would probably be that: listen, pause, use your own words, and stop. (Read More)  

TwoDon’t Be Led (in Deposition)

The name “Discovery” doesn’t quite do justice to the litigation phase it describes. When it’s done well and with purpose, the point of discovery isn’t so much to discover evidence as it is to create evidence. In deposition, for example, the deposing attorney’s fondest wish is not to discover the witness’s view of what happened, but instead to get that witness to confirm the attorney’s version of what the case requires. For that reason, taking a deposition is all about control. The deposing attorney would just testify on his own if he could, but the process doesn’t allow that, so the next best thing is to fully control the witness. And the best way to fully control the witness is to lead. (Read More) 

ThreeCounterpunch: Ten Ways to Fight Back on Cross

A good witness should not see cross-examination as an argument, but neither should that witness see it as a time to be agreeable and passive with opposing counsel. Because the inherent conflict of cross piques the jurors’ interest, it can be a critical time. The two sides are in direct conflict and the jury has the ability to decide first-hand who seems to be winning at that moment. Given the stakes, it is too dangerous for a witness to just be led along by opposing counsel, comforting themselves with the knowledge that, “Well, at least I got to tell my side in direct,” or, “My own attorney will give me a chance to fix all of this in redirect.” Both are valid comforts, but effective direct and redirect will never completely erase the perceptual losses that can occur in cross. Substantively, the problem might be fixed, but jurors will still remember those moments where the witness looked weak, and that cannot help but influence their perception of your case and of the witness’s credibility. (Read More)

FourAvoid Distractions on the Stand

The witness sits in the box. As counsel continues to fashion a question, what is running through that witness’s mind? “Where is the attorney going with this? I still haven’t had a chance yet to talk about all of the things I did well. Has juror four fallen asleep? And what was it I was supposed to do with my hands? Okay, so here is what I think I’m going to say when she finally stops her question…” As the question ends, the witness begins to answer, but the answer isn’t quite responsive, and the response isn’t quite strategic. The reason for that has to do with one of the greatest difficulties in this complicated situation of witness testimony: distraction. (Read More)

FiveWitnesses, Don’t Get Too Comfortable

Think about stage fright. Now, multiply it by two, or perhaps ten in some cases. Being in the witness chair in trial compounds what we traditionally think of as speech apprehension, because it adds not only greater degrees of formality, but also the knowledge that there is someone on the other side who is being paid quite well in order to pick us apart. For a party in the case, an expert witness, or any witness, the advice to “just be calm” doesn’t often help. Testimony, whether in trial or deposition, is inherently a high stress event and the advice to get comfortable and relax may not be just unrealistic, but counterproductive as well. (Read More)

SixPractice Mentally

When I taught public speaking I’d ask students to picture an experiment. A group of people are being tested on their ability to shoot basketball freethrows, and they’re divided into subgroups (evenly matched on ability) and each subgroup prepares for the test differently. One group prepares by actually practicing with a basketball on the court. A second group is asked to prepare by visualizing the shot: They picture the ball arcing through the air and going through the basket, nothing but net. A third group does nothing before the test. So which group would you expect to do best on the test? The group that practiced with the ball seems like the best bet. But the intriguing possibility is that the group just visualizing would come in a very close second. Some say that this study has actually been done with exactly that result, but the better information seems to be that this study on visualization is just that, a visualization – an academic myth about a study that never actually occurred. But the illustration is still useful and there is no shortage of current research on the benefits of mental preparation. (Read More)

SevenWitness, Don’t Teach (in Deposition)

One common piece of advice given to fact witnesses during deposition preparation meetings is that it isn’t their role to instruct opposing counsel on everything they ought to know: “Witness, Don’t Teach.” I’ve resisted the temptation to set that advice to the music of Madonna’s “Papa, Don’t Preach” song, but that might be a good way to remember it. Some witnesses, of course, want to do as little talking as possible, and the chances of being the other side’s teacher is pretty remote. But for others, particularly those whose professions involve a lot of teaching-style communications – think business executives or doctors – it can be a strong urge and a hard habit to break. Experts, of course, are in a different category, and need to explain (but not persuade on) the bases for their opinions. But for fact witnesses, the time to teach will nearly always be not until trial. (Read More)

EightIf You Don’t Know the Answer, Then That’s Your Answer

As the question hangs in the air, you can see the tension working on the witness. Her face screws up, she looks at the ceiling, tenses her shoulders, and delays. As you call for a time-out in the preparation session, the witness blurts out, “What should I say? I don’t know the answer!” Well, the attorney and consultant patiently explain, if you don’t know, then perhaps that should be your answer. As long as the witness has done her homework in knowing what she should know, and as long as she isn’t using it as an evasive tactic, then “I don’t know” is going to be the only correct answer to that question. For attorneys and those who work with them, that advice is pretty obvious. Only it isn’t always so clear on the witness’s side of the table. Saying “I don’t know” can feel like failing a test, looking stupid, or falling into opposing counsel’s trap. (Read More)

NineBe Realistic About Hypothetical Questions: Four Ways to Answer

A popular focus in the polling for the presidential race right now is to ask about the various potential general election match-ups: What if it was Clinton versus Trump? Or Sanders versus Cruz? Clinton versus Rubio? Sanders versus Bush? As often as we hear that kind of data, professional pollsters will tell you that these kinds of questions, at this stage at least, have virtually no predictive power. The problem is that the question is based on a hypothetical “What if…” scenario. People have enough trouble self-reporting their attitudes in the relatively static context of current conditions. Add in the hypothetical scenario and you are also adding in a number of other unknowns: For example, what kind of amazing turnaround (or spectacular collapse in the other candidates) would have catapulted Bush to the GOP nomination? If the Democrats end up with Sanders, will that be because he effectively courted and converted the establishment wing, or will it be because his progressive wing overpowered the establishment? Our preference in any of these match-ups would be shaped by the events leading up to it. Or, more simply, the hypothetical match-up question posits a future situation that we just have not had a chance to think about or to get used to. Respondents can and will give an answer, but the answer isn’t terribly reliable. (Read More)

TenAvoid Gaze Aversion in Your Deposition Video

Every experienced communicator knows that eye contact can be key to credibility. A communicator who maintains strong eye contact has power and immediacy, while one who avoids eye contact conveys weakness and a lack of confidence. For witnesses, that understanding is easy enough to apply in situations of live testimony: Look at the examining attorney while the question is being asked, then look at the individual jurors while delivering the answer. But what is the correct advice in a deposition? As video-recording increasingly comes to be the ‘standard of care’ that attorneys bring to depositions, should witnesses be making eye contact with the camera, the deposing attorney, or something else? (Read More)


Other ‘Best of’ Posts: 


Image credit for top image:, used under license. Credit for other images in full text of each post

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