Category Archives: Testifying Effectively

October 23, 2017

When Assessing Emotions, Listen, Don’t Look

By Dr. Ken Broda-Bahm:

It was written all over his face.” That’s what we say when we think someone’s expression has told a truer tale than their words. It is the kind of statement that shows that we naturally pay a great deal of attention to the face when we are trying to assess emotion or credibility. But maybe we pay too much attention. According to research reviewed in a recent post in Psyblog, it is actually the tone of voice and not the face that does the better job of accurately conveying emotion.

The study (Kraus, 2017) shows people actually read emotions more accurately when listening and not when looking at faces. Over the course of five experiments involving over 1,772 participants, Dr. Michael Kraus looked at the ability to accurately empathize under three conditions: while looking at and listening to a subject, while just looking, or while just listening. The third condition won out, and accuracy was best when the research participants were just listening and not when they were just watching, or listening and watching at the same time. Similar results have been found in other studies. But why would less information be an advantage? Kraus suspects it is because people are better at hiding or faking emotions via the face rather than the voice, and listening and watching at the same time is cognitively complex, which causes the more reliable signs in the voice to be outweighed or missed. “Actually considering what people are saying and the ways in which they say it can,” Kraus notes, “lead to improved understanding of others at work or in your personal relationships.” It can also lead to better client assessment and witness preparation, as I’ll share in this post.

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October 16, 2017

Treat Cross-Examination Questions as a Flashlight in a Dark Room

By Dr. Ken Broda-Bahm:

What do I mean when I say the witness should treat cross-examination questions like a flashlight in a dark room? I mean that the questions are designed to shine a light on some things and to purposefully leave other things in the dark. Imagine, for example, a series of questions designed to show a hotel room is unoccupied: The TV is off, right? The luggage is gone? There’s no one in the chair? And there’s no one in the bed, all true? These may all be true, but what are they leaving out? The bathroom door is closed. The room’s occupant is still there. The claims made in the questions are all true, but they’re purposefully incomplete. They are selected and designed in order to tell the examiner’s story, not your own. I have used this analogy before, in a post focused on the selective nature of memory, but it also applies to the selective nature of questioning.

A self-protective pattern of responding to these selective questions requires more than just saying ‘Yes’ to what is true, and more than just confirming what opposing counsel happens to be shining a light on at any given moment. A self-protective response requires shining a light on some things your adversary has chosen to leave in the dark. And sometimes it means just turning on the lights to see what’s in the room. I’ve known many witnesses who will say during a prep session, “Well, that’s true. What else can I say other than ‘yes?'” The answer may be ‘Yes,’ but you can and should say more than ‘Yes’ because ‘Yes’ isn’t the whole story. In this post, I’ll use an extended example to highlight the ways a witness can get beyond the flashlight focus of a true but incomplete claim in a question.

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July 6, 2017

Be the Director of Your Witness’s Direct Examination

By Dr. Ken Broda-Bahm:

14710915_sWhen we think of the most exciting moments in Hollywood’s version of a trial, direct examination isn’t among them. The act of putting on your own witness in order to establish the elements of your case has none of the drama we associate with a courtroom battle. Instead of offering the conflict of one side against the other, as we see in cross-examination and in dueling opening statements, the direct examination is more predictable, calm…and boring. Instead of an exciting game, it’s like one team’s coach tossing softballs to one of his own players. Legally, however, the direct examination is critical. Proving up your case is about pulling together the facts, and the direct examination is where many to most of those facts are established. But that legal importance doesn’t always translate into juror attention. I’ve seen jurors who had just been sitting at the edges of their seats to watch the end of a cross-examination visibly slump back and disengage when they see that the process is moving back to direct examination for the next witness.

I believe, however, that the dramatic failings of the direct examination aren’t inherent in the process itself, but rather stem from the ways that attorneys approach direct examination. The direct outline is often seen by attorneys as something they prepare on their own, and treat as a simple matter of moving through the claim elements or the checklist of facts they need to establish. That approach may serve your case’s legal needs, but won’t fully engage the jury. To be persuasive, a great direct examination of either an expert or a fact witness requires as much planning and attention to strategy as a great cross-examination or opening statement. In this post, I’ll share five rules for making that direct engaging and effective.  Continue reading

July 3, 2017

Don’t Dodge the Question

By Dr. Ken Broda-Bahm:

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It seems like the simplest piece of witness advice imaginable: Answer the question. But, at least judging by the number of times a witness doesn’t quite answer the question, it is a little more complicated than that. For a variety of reasons, many witnesses end up dodging the question. That can be a purposeful (and unwise) strategy, or more likely, it can be accidental or more apparent than real. But in nearly all cases, a perceived dodge is going to be more harmful to credibility than an honest answer would have been. Even when it is an answer that hurts you on some level, you do less harm in the end by giving the honest answer without a dodge. When the lawyer on the other side has to fight for you to just focus on the question, or pursue you for an answer, then it just serves to highlight the bad fact that you’re desperately trying to avoid. 

When an audience believes you’re dodging, that hurts your credibility. Now, recent research (Clementson, 2017) shows that as well. The study in the current issue of Journal of Language and Social Psychology looked at a younger sample of university students as well as an older sample outside the university. Each group was shown a video of a politician either answering or dodging a question by changing topics. The results? For both groups, they’re exactly what you would expect: The perceived dodge reduces the trustworthiness of the speaker. The author, David E. Clementson of Ohio State University, believes that this is because people speculate and ruminate on the reasons for an apparent unwillingness to answer the question. In short, as summed up by the title of a write-up of the study in Research Digest“When you dodge the question, it makes you look dodgy.” In this post, I’ll look at some of the ways a witness can avoid looking dodgy by avoiding the purposeful, the accidental, and the apparent dodge.  Continue reading

June 12, 2017

Take Care When Calling Out a Liar

By Dr. Ken Broda-Bahm:

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For politically-oriented news junkies, this past Thursday featured must-watch fare. Former FBI Director James Comey raised his hand, took the oath, and testified about his carefully-documented meetings with his old boss, President Donald Trump. What stood out from his testimony was the number of times he called Trump a liar, by implication and, at times, using that actual word. Trump lied, according to Comey’s testimony, about the disarray within the FBI, and in his many statements to the media denying that he had asked for Comey’s loyalty and requested that he let go of the investigations into Michael Flynn’s alleged collusion with Russia during the campaign. While the most conservative sources treated the testimony as nothing new, or perversely as a ‘complete and total vindication’ of Trump, everywhere else, the testimony was taken as a sensational indictment of Trump and his young presidency. Of course, it is high-stakes messaging for any witness. While Comey’s bluntness raises his credibility before some audiences, it certainly lowers it before other audiences, potentially putting him in the category of the disgruntled ex-employee.

A parallel risk exists for witnesses in the courtroom or in the deposition chair. The question of whether someone else is lying is generally dangerous territory: an invitation to step outside the zone of your own knowledge, potentially reducing your credibility in the process. In Comey’s case, that step is probably worth it. Either Comey or Trump is lying, and barring the appearance of any ‘tape,’ Comey has the oath and the contemporaneous notes on his side, and according to a recent YouGov poll, a mere 26 percent of the public trusts Trump more than Comey. But in the case of the typical fact witness, the statement that someone else is lying can be the proverbial ‘bridge too far.’ In this post, I’ll share some ways that the more conventional witness ought to handle those questions with care.  Continue reading

May 11, 2017

Experts, Take a Lesson from Sally Yates

By Dr. Ken Broda-Bahm: 

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Government law enforcement officials have a pretty high profile right now. That’s especially true as they’re increasingly moving into the category of being former law enforcement officials after being removed by President Trump. There was U.S. Attorney Preet Bharara in New York, and more recently, of course FBI Director James Comey who became former FBI Director this past Tuesday. And the day before that, the one in the spotlight was former Acting U.S. Attorney General Sally Yates. She served in that role for only 10 days before being removed by President Trump after refusing to enforce the President’s controversial travel ban. On Monday she testified before the U.S. Senate Judiciary subcommittee hearing on Russian interference in the 2016 presidential election. And, from many sources at least, her testimony has earned high praise. The events have played out like an episode of The West Wing: Already seen as a hero after taking a principled stand on the President’s attempt to partially fulfill a campaign promise to bar Muslims from entering the country, she held her own against the attempts of many GOP Senators to paint her as a partisan, and came off as polite, prepared, and fundamentally tough.

In other words, she came across exactly the way you would want an expert witness to come across. Experts need to be focused on their own role, methods, and conclusions, while also being savvy enough to recognize an attack when they hear one and confident enough to turn some of these attacks back against the other side. I have written before on the advantage of treating cross-examination as a “polite struggle” and in employing the “counterpunch” wherever you can. In my view, Yates’ performance during subcommittee testimony provides a good and timely example of some of the ways that experts can do that. In this post, I will share and discuss some of those examples from her testimony transcript 

Know Your Role

While it was not the topic of the hearing, Sally Yates understood that her earlier decision on the travel ban would come up, because it goes to her credibility. On cue, Senator Cornyn asked about Ms. Yates whether that decision was inconsistent with her role to reasonably defend the actions of the administration. She answered,

It is correct that often times, but not always, the civil division of the Department of Justice will defend an action of the president or an action of congress if there is a reasonable argument to be made. But in this instance, all arguments have to be based on truth because we’re the Department of Justice. We’re not just a law firm, we’re the Department of Justice.

Later on, responding to the same question from Senator Kennedy, she expanded on this point, explaining that any defense of the action would have to include the argument that the executive order had nothing to do with religion, and based on candidate Trump’s past statements, that would be a difficult argument to ground in truth. 

Her response on that theme reflected careful attention to the exact nature of her role, which isn’t to simply defend the administration no matter what, but to reasonably ground her arguments in truth as well. That role parallels the expert’s role, and the approach in answering reflects the expert’s need to display a kind of qualified independence. To Yates, the DOJ is “not just a law firm,” and the legal expert is “not just an advocate.” Always a risk of being seen as a hired gun, a good expert will emphasize a simple and clear explanation of what their role actually is: To conduct an analysis and report those results to counsel no matter what those results turn out to be.  

Know Your Questioner

Consistent with knowing their role, experts like to stay within their box: their area of expertise, their methods, their conclusions. That, of course, is wise. But at the same time, it helps the expert to know their adversary as well. What are their goals and themes? What questions and tactics have they pursued with prior witnesses? Fundamentally, how are they hoping to undermine your testimony? 

In the case of Sally Yates’ testimony, she knew some of the senators would focus on the perceived disloyalty in failing to enforce the President’s order. On that theme, it helped to know what those senators had said previously. Again in response to Senator Cornyn, she clarified:  

Let me make one thing clear. It is not purely as a policy matter. In fact, I’ll remember my confirmation hearing [For Deputy Attorney General]. In an exchange that I had with you and others of your colleagues where you specifically asked me in that hearing that if the President asked me to do something that was unlawful or unconstitutional and one of your colleagues said would just reflect poorly on the Department of Justice, would I say no? And I looked at this, I made a determination that I believed that it was unlawful. I also thought that it was inconsistent with principles of the Department of Justice and I said no. And that’s what I promised you I would do and that’s what I did.

In this case, it was a turn the senators were not able to answer: I only did, she said, what you asked me to commit to doing. 

Answer the Question and the Implication

It is helpful to think of a question as having two parts: the question itself and the implication that the questioner hopes to convey to the audience. When cross-examination is well prepared, the questions aren’t really questions, they’re arguments. The question combined with your response — and sometimes just the question itself, not matter how you respond — carries the intended message for jurors. 

In Sally Yates’ testimony, Senator Cruz tried to convey the argument that the attorney general lacks the authority to defy an order based on simple disagreement. 

Cruz: And if an attorney general disagrees with a policy decision of the president — a policy decision that is lawful — does the attorney general have the authority to direct the Department of Justice to defy the president’s order? 

Yates: I don’t know whether the attorney general has the authority to do that or not. But I don’t think it would be a good idea. And that’s not what I did in this case.

Note that Cruz is asking hypothetically about “an attorney general,” but Yates goes beyond just answering in order to address the obvious implication: “And that’s not what I did in this case.”  

Anticipate and Answer

The coup de grace of Ms. Yates’ testimony was also at Ted Cruz’s expense. In what was clearly intended to be the Senator’s gotcha moment, he brought up the legislative authority for President Trump’s travel ban. Yates, however, anticipated that and came with her own legislative authority that post-dated the Senator’s. Then, she went one better and reframed it as a constitutional issue and not just a matter of legislative wording. The exchange went like this:   

Cruz: By the express text of the statute [8 USC Section 1182], it says, quote, “whenever the president finds that entry of any alien or of any class of aliens into the United States would be detrimental to the interest of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants, or impose on the entry of aliens any restrictions he may deem appropriate.” Would you agree that is broad statutory authorization?

Yates: I would, and I am familiar with that. And I’m also familiar with an additional provision of the INA that says no person shall receive preference or be discriminated against an issuance of a visa because of race, nationality or place of birth, that I believe was promulgated after the statute that you just quoted. And that’s been part of the discussion with the courts, with respect to the INA, is whether this more specific statute trumps the first one that you just described. But my concern was not an INA concern here. It, rather, was a constitutional concern, whether or not this — the executive order here — violated the Constitution, specifically with the establishment clause and equal protection and due process.

Of course, politically, readers might support Cruz or might support Yates. But tactically, the advantage goes to Yates, in my opinion, because she anticipated the argument and prepared for it, then she kept her answer clear, brief, and assertive rather than defensive. Just like an expert should. 

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Photo Credit: Renegade98, Flickr Creative Commons 

May 8, 2017

Rely on Standard Practice

By Dr. Ken Broda-Bahm: 

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At a recent witness preparation meeting, the doctor-defendant sat struggling to recall the details of an informed consent discussion she had with the plaintiff. “I think I told him…” she began, before finishing the statement with, “…Do you know how many patients I see? I really cannot remember.” The medical record reflected that there was indeed a discussion on risks, but the notes were not specific enough to answer the key question we expected from plaintiff’s counsel: Did the discussion cover the specific complication that actually occurred? Sensing that the doctor was about to resign herself to an, “I don’t know,” I asked, “Well, in cases like this, what do you usually talk about with patients?” And, without much effort, she reenacted that discussion and included the key warning. “Okay then,” I said, “Why don’t you say that?” She explained that, because it wasn’t in the record and because she didn’t have a specific recollection of this discussion, it did not seem like that would be credible. “It’s probably more credible,” I responded, “because it is what you say in every case, and not just in this case.” 

The solution when records and specific recollection fail is to rely on pattern and practice — not the pattern and practice evidence that can be admissible as evidence of bad faith or pretext in, for example, an employment suit, but rather the pattern and practice that serves as credible evidence of our habits. Relying on these standard practices isn’t just good advice for doctors, but can also serve as a reliable basis of testimony in other contexts: in fleshing out a product development story, or in describing the norms of your communication about a contract, for example. In each case, the witness who does not recall a specific interaction and cannot point to specific documentation about that interaction is not out of ammunition. Instead, the witness can answer by saying, “My standard practice in situations like this is to…” And rather than being a consolation prize, next-best sort of answer, that use of what is typical can turn out to be highly credible in practice. In this post, I’ll share my thoughts on why that is the case, and how pattern and practice can be put to the best use. 

How Do You Know What You Know? 

It is part of my standard advice in witness preparation meetings that there are three ways that we know what we know. Let’s say someone asked me what I had for breakfast the Tuesday before last. I might remember because something unique happened that day: My dog escaped from the yard, and I recall having to set aside my grapefruit to go bring her back in. So, we could recall because there is an independent recollection. Or, perhaps I was traveling that day and I have a receipt that identifies it as “grapefruit.” That’s the second way: documentation. Or, maybe I always have a grapefruit for breakfast, so I know without specifically recalling or without looking anything up what I ate on that particular day. That is pattern and practice, the third way of knowing. 

I tell my witnesses to just think of this as a filing cabinet with three different drawers. Each one is fine to use in testimony as long as you make clear which drawer you are drawing from and you don’t mix up the content: Don’t say you independently recall something if you’re really just relying on your notes or your pattern and practice. But do treat those other sources of knowledge as potentially just as good as independent recollection — or maybe even better. 

Why Might Pattern and Practice Testimony Be the Most Credible? 

Legally, of course, the case focuses only on the plaintiff. Yet there are some common sense reasons why information that extends beyond the individual plaintiff is often going to be more meaningful and more memorable. The modern Reptile approach to persuasion used by plaintiffs’ attorneys, for example, is dedicated to the idea of framing the case so it is a statement about the whole community and not just the individual plaintiff. It is also to be expected that jurors will focus more on what one always or typically does, rather than on what one does in one specific instance, in forming an overall assessment of credibility and merit. 

The advantage of pattern and practice testimony is that it extends beyond the individual plaintiff and speaks to what is true in most or all cases. It isn’t based on a single-claimed memory, or on a document that might not be perfect or complete, but is instead based on knowledge of what is true all the time. 

How to Make the Most of Pattern and Practice? 

As with all aspects of witness testimony, the first piece of advice is to make it honest. Practically speaking, if you say you always do something and you don’t, then the impeachment will be both easy and devastating. In some cases, the pattern and practice is what is generally or typically true, without being always and absolutely true. In those cases, I believe it is still useful to rely on your pattern and practice, using the “preponderance” standard as a rough guide.

In these cases, ideally, there will be some explanation for when that pattern and practice does not apply. In other words, it isn’t random: The circumstances when the doctor does not conduct an informed consent discussion, for example, is limited to just those circumstances where the patient either has already consented or cannot consent (because he or she is unconscious), and those circumstances were not present in this case. 

Ultimately, the witness’s description of pattern and practice is something that should be worked out during witness preparation: It should be as honest, as complete, and as detailed as possible. 

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April 6, 2017

Use Your Deposition as Your Sword and Shield

By Dr. Ken Broda-Bahm: 

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Trial is coming up, the witness is told: “Be at the courthouse by 7:30 Monday morning, meet us in the office on Friday, and oh, remember to carefully review your deposition.” The court date might be a relief after a long wait, the meetings with counsel should help to add focus and calm your nerves, but the reading and the rereading of the deposition? That seems like “homework,” a chore, or the forced reliving of a bad experience. But it is actually one of the most important steps, and a stage in the preparation process that the witness can fully control and master. As I like to say, a knowledge of your deposition — not just a general knowledge, but a deep and specific knowledge — should be your sword and your shield in your trial testimony. It should be a defense against the traps and tricks of impeachment, and it should be an offense in letting you know exactly where you can confidently expand upon what you said in your deposition. 

But witnesses frequently miss that opportunity by reviewing the deposition only a little rather than a lot. I’ve written previously about the demonstrated advantage in “overlearning” the deposition, or continuing to review it past the point of general familiarity. In this post, I’ll provide some further thoughts on the reasons and ways that additional knowledge can play both a protective and proactive role in helping your testimony during trial. Specifically, I think there are three ways a detailed knowledge of your deposition can provide that help during your trial testimony. 

Why Is Deposition Knowledge Your Best Friend During Trial Testimony? 

Because It Lets You Know What Is Coming

Chances are good that your trial testimony is going to focus on what opposing counsel sees as their “Greatest Hits” from deposition. They’re unlikely to try to plow much if any new ground, and are more likely to just cherry pick moments from your deposition that they think will play especially well in front of a jury. That tendency to focus on the tried and true is useful for the witness who knows what is coming. When the start down a familiar road that you recognize from the deposition, you will know that it is your chance to answer in a way that is consistent with what you said in the deposition, while also potentially expanding on it and adding effective explanations that were not necessarily covered in your deposition.  

Because It Lets You Know How to Avoid (or Manage) Impeachment

The step of impeaching the witness, or calling out a prior inconsistent statement from your deposition, is a technique that many attorneys love. And it can definitely look bad if opposing counsel is showing that you are changing your answers. We have found that jurors will generally assume that the deposition answers are more accurate, both because they’re closer in time to the events at issue and thought to contain less of the persuasive “spin” jurors expect in a trial. But if you know your deposition well, then you’ll know how to answer in a way that’s consistent with your deposition answer. Where you do need to answer a little differently, you will know you are doing so, and you’ll have a chance to provide an explanation before your adversary has a chance to start down the impeachment road. 

Because It Lets You Know the Rest of Your Answer

Less experienced witnesses often see examination as a list-like series of individual questions. But it is really not the case that each question stands on its own. Instead, there are chains of questions. Opposing counsel will pursue a series of predicate questions before getting to a conclusion. And if the first run through fails to get at the optimal answer, counsel will back up and take another run at it. So, even though the focus at the moment might be on one question-and-answer set from deposition, chances are good that you said more on the subject. If you know your deposition well, you can focus not just on the individual answer, but on everything you said on that topic every time it was addressed. And if, when trying to impeach, it turns out the the attorney is snipping out critical context, or ignoring the better answer you gave a few minutes later, then it is your opportunity to turn the situation around by impeaching the attorney’s credibility.  

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Photo credit: Dennis Jarvis, Flickr Creative Commons (edited)

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February 23, 2017

Witnesses: Know Your Seven Ways Out of the ‘Yes or No’ Trap

By Dr. Ken Broda-Bahm: 

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For an attorney taking a deposition or conducting a cross-examination in trial, there is one key word that describes that attorney’s strategy: control. The questioning attorney wants, maybe needs, to control the witness in order to build useful testimony in a deposition or to highlight useful testimony in trial cross-examination. The more the witness is talking, the less control the attorney has. So there is a preference for leading questions that just call for a “Yes” or a “No.” After all, the attorney has a lot more control when the witness is just affirming or denying the lawyer’s word choice and focus, rather than choosing the words and the focus on their own. From a control perspective, the question, “Then you finalized your differential diagnosis, without including DVT, correct?” is a whole lot better than, “What did you do then?”  

Of course, that is “Examinations 101.” But what witnesses need to understand is that, at its extremes, this preference for yes/no leading questions can lead to an insistence, “Please, just answer the question ‘Yes’ or ‘No.‘” Sometimes, for dramatic effect (or intimidation), the attorney will add in a measure of condescension: “It is a simple question. You understand it, don’t you? Let me repeat it slowly, and you listen carefully, then tell me if it is ‘Yes’ or ‘No.'” Rather than being a sign that a witness is messing up, that insistence often appears when a witness is doing particularly well in offering good explanations and framing the answers in favorable terms. So the questioning attorney’s efforts to limit the answers to the single word is an attempt to take back a bit of power from the witness. Some witnesses give in and just be led at that point, because it is easier than fighting counsel. The prepared witness, however, will try to fight back. Politely and respectfully, she will try to break out of that ‘Yes’ or ‘No’ control trap in order to get back to phrasing the answer on her own terms. So how does she do that? In this post, I will share seven ways of answering the ‘Yes’ or ‘No’ question without backing down.  

1. “Not Necessarily…”

Questioners take advantage of the fact that we tend to treat generally true statements as true statements. Do bears…relieve themselves… in the woods? Yes, but not those who live in the arctic or the Manhattan zoo. When the question poses an absolute that is not really an absolute, then “Not necessarily” is the right response. And remember that opposing counsel won’t let that answer stand on its own, but will instead want to know when that general principle does not apply. 

Q: Are the medical records going to be the best indications of what medications a patient was on? 

A: Not necessarily. It will record the medications that I have prescribed, but not always those that other doctors have prescribed. 

2. “It Depends…”

Closely related to the “Not necessarily,” the “It depends” applies when the principle perhaps isn’t even generally true, but is in fact only true under certain conditions that the question has not specified. Here as well, if you say, “It depends,” then be prepared for the next question to be, “Depends on what?” 

Q: Isn’t it true that if a headache persists for more than a day, that is a reason to revise your diagnosis and consider a vascular cause? 

A: No, it depends on the nature of the headache, how it started, whether it is constant or intermittent, and it depends on the patient’s overall medical history. 

3. “I Would Need to Know More…”

A common tactic in questioning is to try to secure agreement at the level of principle, and then apply that principle to the case at hand. The agreement, in principle, is generally phrased as a hypothetical, like a question about “a patient” rather than “the patient.” The problem with hypotheticals is that they are often incomplete descriptions, and in that case, the right answer is that you would need to know more. 

Q: If you have a patient who is a smoker and on birth control medication, she is going to be at greater risk of heart disease, correct? 

A: I would need to know more about this patient — her age, ethnicity, family history, her overall medical picture — all of it contributes to her risk profile for heart disease. 

4. “Yes (or No), And…”

Sometimes there really is a “Yes” or “No” answer, but it does not stand on its own. There are two parts to these questions: what is being literally asked and what is being implied. Just answering “Correct” to that question leaves any listener or reader of the testimony with an implication that is incomplete. In response, witnesses need to fill in what is missing as part of their answer. 

Q: Nothing in your chart indicates that she was given a physical examination, correct?

A: Correct, and that is typically not charted unless there is a remarkable or atypical finding. 

5. “Yes (or No), Because…”

Sometimes the answer the other side is calling for is accurate and not misleading, but it still requires a justification. In a deposition, you don’t necessarily want to supply that justification if it isn’t sought: If they don’t ask “Why” or “Why not,” you are still free to provide those explanations in trial testimony. But in trial cross-examination, just acknowledging without justifying can sound too weak. Even if it is repaired later in direct or redirect examination, the impression has already been made. For those questions, try to get in a short reason. 

Q: The condition that killed Ms. Jones wasn’t even on your differential diagnosis, correct? 

A: That is correct, the differential was focused on diagnoses that were all far more consistent with the symptoms she presented. 

6. Yes (or No), But there’s an Explanation.

I believe that, as long as they’re answering questions and not filibustering, witnesses should have the right to their own words. However, I have seen it happen where counsel will successfully limit a witness to just the “Yes” or the “No,” sometimes with a judge’s help. Tagging, “Can I explain?” to the end of that answer often doesn’t work at that moment because it just invites the response, “Yes, you’ll have time to explain when your own attorney is examining you.” However, even if you can’t give the explanation, you should still indicate that there is actually an explanation. 

Q: You still prescribed the drug despite it being contraindicated, right? We just need a Yes or a No. 

A: Yes, but there is an important explanation. 

In trial, that puts your questioner in a tough spot. Either they move on and leave the jury wondering about that explanation, or they give in and say, “Okay, what is the explanation?” 

7. I Don’t Know.

Sometimes the three strongest words in response to a question are “I don’t know.” When that is the real answer, then that answer is always going to be safer than any alternative. If the questioner has framed it in a way that prevents you from knowing whether it would be a “Yes” or a “No” answer, then say so. 

Q: So based on what you’ve said, the other treating physician made the wrong call? 

A: I don’t know that. I don’t know the full picture that the patient presented when she saw the other physician. 

For the attorney, examinations are about control. So for a good witness, they’re about taking back at least some of that power. To do that, you’ll have to frequently break out of the “Yes or no” trap. 

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Image credit: 123rf.com, used under license, edited

February 13, 2017

Overlearn Your Deposition

by Dr. Ken Broda-Bahm: 

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For the witness preparing for trial testimony, there is one common piece of advice: Study your deposition. In preparation sessions, I will always stress this advice, noting that a thorough knowledge of the deposition is both your sword and shield during trial testimony. Not only does it avoid or blunt the effects of impeachment, it also helps in letting the witness know exactly where opposing counsel is going and why. Of course, most witnesses will review their deposition before trial. But, in my experience at least, fewer witnesses will study that deposition enough. Just having a copy is not enough. Just skimming through it is not enough. Even reading it cover to cover is not enough. Instead, a truly prepared witness will have read it more than once, and will have read it actively in order to have an understanding of the topics covered, the ways the key questions were phrased, and the precise language of the most important answers. When the witness knows the prior testimony at that level, cross-examination is a lot more difficult for opposing counsel.  

The problem is that some witnesses, probably most, will stop reviewing the deposition once they feel like they are generally familiar with it. The research, however, shows that they should keep going. A new study (Shibata et al., 2017) focuses on “overlearning,” or “the continued training of a skill after performance improvement has plateaued.” The result is that continuing to study, even after you have that “I’ve got it” feeling, yields some definite benefits. Focused on a learning task, the study found that spending even 20 minutes past the plateau point in learning, lead to significantly greater retention of information. The thinking is that, after we learn something, that knowledge is initially “plastic” rather than “stabilized.” That means that, even though it is well understood at the moment, it is vulnerable and in danger of being overwritten, in effect, by new knowledge. Overlearning seems to combat that vulnerability by locking in the information. According to one of the study authors, Professor Takeo Watanable, “These results suggest that just a short period of overlearning drastically changes a post-training plastic and unstable [learning state] to a hyperstabilized state that is resilient against, and even disrupts, new learning.” So extra review is good advice for anyone trying to learn new information. In this post, I will share a few recommendations for witnesses seeking to know their deposition testimony prior to being examined at trial.  

Here are three pieces of advice I think witnesses should take to heart when it comes to learning their depositions. 

Review Actively, Not Passively

The advice I hear most often from attorneys is, “Here is a copy of your deposition, make sure you review it.” But if the witness just passively reads it, the way they might read a novel, they are missing out on most of the benefits. Instead of just reading it, the witness ought to actively engage with it. Use sticky tabs to identify all of the topics covered. Make notes on which topics proved to be most troublesome, and therefore most likely to be covered in cross. When you see a key answer that is likely to matter in trial testimony, highlight both the exact wording of the question, and the wording of your answer. Understanding the content at that level provides you with a powerful foundation for not just making it through cross-examination but excelling at it. 

Keep Reviewing Even After You Have It

The witness who dreads their upcoming time on the stand, might not read their deposition out of simple psychological avoidance, and that is a bad thing. The witness who truly wants to do well needs to prepare. But preparing means continuing to review, even after the witness is generally familiar with the transcript. The research makes a good point. Continued review, even after one has reached the point of general knowledge, is like adding a second coat of paint: It makes the knowledge stronger and more likely to last. 

Take a Break After Your Review

New knowledge is also better protected if you give it time to set. It is like waiting for the paint to dry. That is why information learned just prior to going to bed is more likely to be remembered — because for awhile at least, you are unlikely to learn anything new that would risk overwriting what you just learned. So, review your deposition before going to bed, or take a break after reviewing the deposition. Instead of jumping into more work, or reading something else, do some exercise or listen to music.  

Ultimately, it is tough to do too much preparation work in this area. The advice witnesses should be receiving is not just, “Learn your deposition,” but “Overlearn your deposition.” 

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Other Posts on Learning for Testimony: 

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Shibata, K., Sasaki, Y., Bang, J. W., Walsh, E. G., Machizawa, M. G., Tamaki, M., … & Watanabe, T. (2017). Overlearning hyperstabilizes a skill by rapidly making neurochemical processing inhibitory-dominant. Nature Neuroscience.

Image credit: 123rf.com, used under license, edited. 

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