Category Archives: Testifying Effectively

December 19, 2016

Expect First Impressions to Last

By Dr. Ken Broda-Bahm: 

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The witness is in the box, questioning began a few minutes ago, and the thought goes through the witness’s nervous mind, “I hope I make a good impression.” Well, not to make that witness more nervous, but chances are, that impression has already been made. It could have been made in the first few moments of examination, or as she stepped up and took the oath. Perhaps it was made even earlier, when the witness was seen at counsel table, or even in the courtroom hallway. Impressions don’t form gradually and they don’t wait on the substance of testimony. Instead, they’re made on sight, and they’re strong and lasting. In a habit with evolutionary roots, we tend to quickly make assumptions on likability, the bedrock of trustworthiness, as soon as we see a new face.  New research (Gunaydin, Selcuk & Zayas, 2016) shows that these impressions are not just powerful, but durable as well, lasting at least a month based on a single viewing of a face. 

In the study, 636 participants were asked to make judgments of liking and personality after viewing just a number of headshots of individuals they did not know. Then, the participants interacted live with one of the individuals they saw in a photograph a month later. The result was that judgments based on one quick look at a photograph strongly predicted later judgments after more intensive interaction. Participants behaved more warmly toward those whose photos they evaluated favorably, and vice versa. “Once perceivers form favorable impressions of another person,” they write, “they tend to attribute desirable characteristics to them” and to notice and remember information that confirms these characteristics. “Even after having ‘read the book,’ one still, to some extent, judges it by its cover.” In litigation, of course, we know about books, covers, and first impressions, but we hope that over time, what matters most is the substance. Don’t count on it. Assessments can be revised, but the research shows that longer-term exposure to a person is more likely to reinforce those first impressions rather than revise them. For witnesses in trial, this means that first impressions matter, a lot. In this post, I will share a few reminders on forming a positive impression when presenting oneself in court. 

Nine Tips on Making a Good Visual First Impression: 

Impressions of the likability and credibility of a witness are formed quickly, they’re formed mostly on sight, and they tend to be durable. That can be discouraging to the witness who might feel, “If they judge me based on my face…what am I supposed to do about that, short of plastic surgery?” It turns out, there is plenty. Faces are enormously dynamic, so it turns out that managing a good impression is behavioral and not just genetic. From past posts, here are some reminders on making that good first impression.  

1.  Don’t Wear Tension on Your Face: When your face is relaxed, but still interested and engaged, you are more credible. 

2.  Smile: Smiling reduces both your audience’s stress and your own stress. 

3.  Smile the Right Way: A natural unforced ‘Duchenne’ smile conveys likability and credibility. 

4.  Avoid Contempt: Any nonverbal expression that conveys contempt – even contempt for the other side – reduces your credibility.

5.  Especially Avoid the Smirk: The asymmetrical, mocking expression of a smirk is, in particular, a credibility loser.

6.  Look Them in the Eye:  We trust and attribute more confidence and credibility to those who look us in the eye. 

7.  Don’t Wait Until You’re on the Stand: Jurors and judges begin forming impressions as soon as they see you, not just when they hear you. 

8.  Remember It’s a Two-Way Street: When you’re looking at the jury, you’re forming impressions of them too, and those impressions can affect your communication. Don’t put too much trust in your interpretations. 

9.  Maintain the Right Attitude: Because your attitude leaks into your communications, usually the right attitude is one of confidence and nondefensiveness.  

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Other Posts on Witness Credibility: 

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Gunaydin, G., Selcuk, E., & Zayas, V. (2016). Impressions Based on a Portrait Predict, 1-Month Later, Impressions Following a Live Interaction. Social Psychological and Personality Science, 1948550616662123.

Photo Credit: 123rf.com, edited by author

October 31, 2016

Witnesses: Fight on the Bottom Rungs

By Dr. Ken Broda-Bahm: 

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Witnesses who are new to the demands of deposition or trial testimony sometimes have the misperception that testifying is just a matter of getting past each question as it comes. Seeing it as a kind of a quiz, the witness thinks the examining attorney just has a collection of questions, each one more or less standing on its own. Viewed through the lens of that misperception, getting past a single question can seem like success. But that is a dangerous illusion. Instead of asking independent questions, the examining attorney will ask a series of questions linked together by a single goal. The early questions seem to be the easy ones, but they set the stage for harder ones later in the chain. 

Here’s the way I often explain it to witnesses during preparation. The opposing counsel is trying to walk you up a ladder, rung by rung. When you get to the top, they’ll push you off. The typical witness will start fighting only when they realize they’re being pushed off the top of the ladder. But the better prepared witnesses will start fighting when they understand they are on the bottom rungs. In this post, I’ll provide a couple of examples, one good and one bad, of this process. Understanding how it works is key to either preparing the witness or being the witness who will make it as tough as possible for the opposing counsel to use this ladder trick based on prior commitments.  

Let’s consider an example of a doctor defendant’s deposition. 

The Bad Example: Concede the Early Rungs and Fight Only Later

Counsel: You keep complete notes on your patients, don’t you doctor? 

Witness: Yes I do. 

Counsel: Would you agree with me that part of the standard of care is to keep complete documentation on a patient? 

Witness: Yes, that’s true. 

Counsel: In fact, you probably learned in medical school that, ‘If it isn’t in the chart, then it didn’t happen,’ right? 

Witness: Yes, I did. 

Counsel: And in the case of this patient, you testified that you took a medical history of this patient, didn’t you? 

Witness: Yes, that’s correct. 

Counsel: But that is nowhere in the chart is it, doctor? 

Witness: Well…now that I look at it, it doesn’t seem to be there. 

Counsel: And you have already agreed with me that if you’d done it but not documented, that wouldn’t meet the standard of care, correct? 

Witness: Well, we do try to document as much as possible, but there isn’t always time… 

Counsel: So are you changing your prior testimony? 

Witness: No, I’m not…but I’m sure I must have taken a medical history. 

The problem here is that the witness does not start resisting until counsel is already drawing the adverse conclusion that the doctor is either wrong about his commitment to complete documentation, or wrong about whether he took a medical history. In other words, the fight only comes when the witness is at the top of the ladder and being pushed off. 

The Good Example: Fight on the Bottom Rungs

Counsel: You keep complete notes on your patients, don’t you doctor? 

Witness: We try to document thoroughly, and that means documenting a lot, but not necessarily everything that happens. 

Counsel: But wouldn’t you agree with me that part of the standard of care is to keep complete documentation on a patient? 

Witness: It depends on what ‘complete’ means. Anything that is unique or of concern is going to be documented, but it is impossible to document literally everything that occurs

Counsel: Were you not taught in medical school that, ‘If it isn’t in the chart, then it didn’t happen?’ 

Witness: Yes, I was. But that is an aphorism, and it essentially means, ‘try to document as much as you can.’  

Counsel: Now in the case of this patient, you testified that you took a medical history of this patient, didn’t you? 

Witness: Yes, I did take a medical history of this patient. That is my standard practice. 

Counsel: But that is nowhere in the chart is it, doctor? 

Witness: In this case it is not. Sometimes that is documented and sometimes it isn’t. It is my standard practice to always take a medical history, so I am confident that I took one in this case. 

Counsel: So despite what you said about trying to be as complete as possible, you left it out in this case? 

Witness: It appears so. I believe that if there had been anything in that history that influenced my treatment plan, I would have documented that. So the fact that I didn’t tells me that, at the time, the patient shared no medical history that would have been relevant to the treatment plan. 

So in this case it turns out much better for the witness because the resistence starts earlier. Instead of going along with the early questions, the witness begins drawing distinctions on the first rungs, and that makes all the difference later on. Opposing counsel still gets to make the point about a lack of documentation — you can’t change the facts — but the point is made without the witness making it worse. 

This approach takes some practice, and at least a bit of sophistication. From the witness’s perspective, you don’t want to overthink the questions, or answer questions before they’ve been asked. But you do want to have a general awareness of where opposing counsel is going with a line of questions.  

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Other Witness Tips:  

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October 17, 2016

Find a Mindful Way Out of the Stress of Testimony

By Dr. Ken Broda-Bahm: 

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Every lawyer who has ever met with a witness to prepare that person for testimony has probably stressed the ability to be calm and focused while testifying. And after meeting with a great many future witnesses over the years, it’s possible to arrive at the feeling that some witnesses have that ability and some just don’t. But effective focus may be less a matter of natural ability and inclination and more a matter of a skill that can be learned. The skill is something called “mindfulness,” or the state of being in the moment, nonjudgmental, paying attention to present sensations thoughts and feelings. To be sure, some of our habits built up over a lifetime are likely to help or hurt in that regard. And some features of modern life, like continuous electronic connections, might be pushing us away from it. But like other facets of good testimony, mindfulness can be a matter of behavior, and behaviors can be learned. 

A recent study (Lin et al., 2016) tested that principle and found that even a brief intervention had a significant effect on emotional control. As summarized in Psyblog, the study found that “Even those who are not mindful can benefit from meditation to help control their emotions.” The research team asked participants to view a series of upsetting images after meditating for the first time. A control group listened to a comparably paced and delivered TED talk instead, while those in the experimental group listened to a 20-minute audio of Dr. Steven Hickman of UC San Diego walking them through a session on meditation and mindfulness. After finishing the session and then viewing the images, those in the meditation group were more able to successfully rein in their emotional response, and this was confirmed not only through subjective assessment, but also through measurement of electrical activity in the brain. As lead author Yanli Lin explained, “Our findings not only demonstrate that meditation improves emotional health, but that people can acquire these benefits regardless of their ‘natural’ ability to be mindful. It just takes some practice.” 

I have previously written about mindfulness as a strategy against bias for jurors and attorneys, and the mindset seems like it should help witnesses as well. The implication is not so much that witnesses should meditate, though that is not necessarily a bad idea, particularly for particularly stressed witnesses (the 20-minute audio used in the study is available online). But beyond meditation, the important finding is that situational stress is subject to conscious control and adaptation. 

The idea that this perspective helps witnesses is buttressed by the reflections of expert witness, Edward Siedle, in Forbes. “Being an effective expert witness in a legal proceeding requires that an individual disregard social and conversational norms and instead focus upon mindful communication.” He continues, “the expert must maintain as much as possible a calm awareness of his body, feelings, and mind and seriously reflect upon every word heard and said. Anxiety and anger must be closely monitored due to their potential impact upon the testimony.” 

I think this applies to fact witnesses as well, in some ways more so: Because fact witnesses are not outsiders, their involvement in the story is likely to come with an emotional component. We know those witnesses are used to receiving advice: Be calm, just focus on the question. But in the study, simple instructions to be mindful did not work, but the relaxation exercise did. So it is worthwhile for attorneys and consultants to think about exercises, even meditation or possibly some new apps that can also be used to reduce stress and increase focus. 

There are a few common practical behaviors that can be stressed and practiced in your preparation sessions in order to help the witness become more mindful about testimony.  

Reduce Distractions: 

The beginning of the meditation audio focuses a fair amount on how you are sitting. I will often do the same for a witness, who not only has to be comfortable, but positive and alert as well. Finding a relaxed and poised way of sitting for my witnesses most often means sitting centered, leaning forward, arms on the table, one hand folded over the other, with feet flat on the floor. Sticking to that general resting position is one way of removing distractions. Other ways are to control what is in front of you, and of course, to do your best to still your racing thoughts and focus on one thing at a time. 

Focus on the Question: 

In the mediation exercise, the repeated instruction is to return to breathing as a kind of anchor for your thoughts. Remembering your breathing is useful in testimony too, but the anchor is going to be that question: Focus first on just listening, not yet thinking of the answer, but just on understanding what is being asked and remembering that the question frames the sum total of your responsibility at the moment. As Siedle explains about his own expert testimony, “In normal, everyday conversation we often don’t pause to clearly establish what another person is saying. Often our responses are driven by our own communication desires, as opposed to what is being asked of us. The better we listen and reflect, the more likely we will be responsive to others.” 

Monitor Emotions 

Instead of denying emotional responses or attempting to just tamp them down, the better course is to be aware of yourself, sparing some attention to the internal question, “How am I feeling?” As Siedel advises, “Be mindful how you are feeling minute-by-minute as you respond to others. Are you feeling angry, defensive or anxious? Or are you “full of yourself” exuberantly soaring? Both fearful and fanciful emotions can cloud communications.” 

Find the Impartial

Another repeated piece of advice from the mindfulness exercise is to avoid judging or evaluating, and just experience. There is parallel for a witness here as well. Of course, the witness really is partial, often either being a party or being aligned with a party in the litigation. At the same time, there either is or should be a level of neutrality that can be achieved. Stylistically, that means staying calm and informative, not sounding like an advocate or coming too close to the attorneys’ style. Substantively, that means keeping your focus not just on what helps your case, but on what is clear and what is useful to the fact finders. 

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Other Posts on Emotional Control: 

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Lin, Y., Fisher, M. E., Roberts, S. M., & Moser, J. S. (2016). Deconstructing the Emotion Regulatory Properties of Mindfulness: An Electrophysiological Investigation. Frontiers in Human Neuroscience10.

Photo credit: 123rf.com, used under license

September 22, 2016

Safely Handle the “Safety Rule” Question

By Dr. Ken Broda-Bahm: 42178954_sDon’t you think that, when faced with a choice between a safer option and a riskier option, one should take the safer option? Well, on face that seems pretty reasonable. Who wouldn’t want the safer option, after all? The problem is that if you take that literally, then you’ve probably never climbed into an automobile, or eaten food that you didn’t personally grow and prepare, or started up your computer, or…well, you get the idea. A simplistic formulation can seem plausible on face, but then fall apart once it is subject to just a little additional scrutiny. In the Reptile approach to plaintiffs’ litigation, and its earlier Rules of the Road manifestation, that is what is called a “safety rule” question. Authors Don Keenan and David Ball build on Rick Friedman’s technique, arguing that jurors have an easier time dealing with liability if it is packaged as an easily-understood rule to the effect that safety — not just the plaintiff’s safety, but everyone’s safety — is best protected if there is a clear and definite rule, typically beginning with “always,” or “never”). Even when such rules are an oversimplification, the defense witness facing the stress of deposition testimony can take the bait and find that they’ve unwittingly agreed with the foundation of the plaintiff’s strategy. 

For that reason, I think it should now be a standard feature of most defense witness preparation sessions to train on how to answer the predictable safety rule questions that may be asked for any given case. While the Reptile approach is most associated with personal injury, medical negligence, and products liability cases, the logic of a safety rule question extends more generally to any case seeking compensation for a potentially generalizable harm. In all or nearly all cases, a witness could be asked to make a general commitment that is then linked to a specific behavior in the case. The form of the question plays upon a strong cognitive bias that we all have in favor of safety and in opposition to risk. And it can be compelling to a jury. In a medical negligence case, for example, it is a tall order to get a lay jury to look at an expert physician and say that physician missed the mark. If it is in the realm of medical judgment, those jurors won’t be comfortable with that assessment. But if jurors believe that the doctor just failed to follow a simple common-sense rule that everyone acknowledges, even the doctor, then they’ll have an easier time making that call. So the time to respond effectively is when the question is initially asked, and witnesses need to be prepped on the strategy for responding. 

Some Safe Rules for Safety Rules: 

The safety rule question takes advantage of something that attorneys have said to their witnesses for generations: “Don’t fight the obvious.” That is still good advice, but the widespread success of the Reptile strategy requires a rethinking of what exactly is obvious. 

Before sharing some examples, let me offer three good rules of thumb for handling the safety rule question. 

One, Break Out of the Yes/No

The safety rule question works only if the witness accepts the question as a binary “yes or no” choice. If “yes,” then the witness has agreed to a rule that can then be mapped back onto the case facts. If “no,” then the witness sounds unsafe, cavalier, and in denial of the obvious. If, however, the witness responds in her own words instead of simply accepting or rejecting counsel’s words, there is an opportunity for a more precise and less harmful version. For example, interpreting the question, “Isn’t safety the top priority?” as “What would you say is the top priority?” yields a more nuanced answer, like “The top priority is to address the patient’s complaint in a way that maximizes effectiveness and minimizes risk.” 

Two, Demand Precision

The safety rule question also takes advantage of the looseness of language. Words that have a pretty wide latitude of meaning — words like “safety” itself — sound more agreeable at the level of principle and are more applicable once they’re mapped back onto the case facts, in both cases because there is at least one potential meaning that fits. But it isn’t always the same meaning. For example, the general “threat” that would demand emergency medical intervention is not the same as the “threat” that in a case-specific context just demands continued monitoring. So, deponents have a right to ask for a definition, for specification, and for context. Be prepared for pushback (e.g., “Doctor, are you telling that jury that you don’t know what the word ‘safety’ means?”). So be prepared to explain that depending on the context, a broad term can convey many different meanings.

Three, Avoid Absolutes

For a safety rule to really work like a rule, it has to be pretty ironclad. “Always” and “never” work well for the plaintiff, while “generally,” “in some cases,” and “it depends” tend to work well for the defense. The plaintiff’s advantage is that absolutes are effective messages: easy for a jury to understand and apply. But the defendant’s advantage is that the more nuanced and conditional statements are more likely to be accurate. In medicine, for example, “it depends” is far more likely to be a true description than a cop-out. By pushing back against simplistic formulations with realistic degrees of complexity, witnesses are able to deny plaintiffs attorneys the easy starting point that they’re looking for. 

Some Examples

The best answers will be case-by-case and informed by the facts of your case. But just to put the principles above into practice, here are a few examples:

Question: You would agree with me, wouldn’t you doctor, that a physician should never needlessly endanger his patient, right? 

Answer: I agree that minimizing patient risk is always important, and that is balanced against the goals of achieving effective treatment and good outcomes. 

Question: When there is a choice, a product designer should always select the safest option, right?

Answer: It depends. A product designer will always want a product that does the job, while limiting any risks to just those that are necessary for the effective operation of the product. 

Question: When designing public spaces, is it fair to say that hidden dangers are to be absolutely avoided? 

Answer: I am not clear on what you mean by “hidden dangers.” In all public spaces there are varying degrees of potential danger and varying degrees of public notice, so it would depend on what kind of situation you are talking about. 

If the witness is thoughtful and persistent, these approaches can help to drag the safety rule question down out of the realm of the abstract and into the concrete circumstances. And the closer the questioning gets to the actual facts, the less tricky and ‘reptilian’ it becomes.

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Other Posts on Reptile and Safety: 

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September 8, 2016

Cultivate Good Stress

By Dr. Ken Broda-Bahm: 

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Here’s a tale of two witnesses, both of which I prepared in the last couple of weeks. One was a nervous wreck, absolutely convinced that his testimony would be a complete disaster. He felt, initially at least, that he had little to no control over the situation, and seemed to believe that testimony required a specific personal skill that he simply didn’t have. The second witness was also nervous, but was thoroughly engaged. Taking notes on everything that I and her attorney said, she was committed to practice, and even a little exhausting in her continuing requests for more run-throughs: “Let’s try that again...” Both witnesses were definitely stressed, but there was an important distinction in the type of stress. A recent article in Psychology Today, by Jeffrey Davis, takes a look at this distinction. You have probably heard before about the “stress curve,” or the view that when it comes to optimum performance, too little stress is bad, too much stress is bad, and a moderate amount of stress is just right. But that approach assumes that we are just talking about one thing when we talk about stress. In contrast, Jeffrey Davis points out, “Not all stress is equal. There are dis-stressors that can paralyze your creativity at work, and there are eu-stressors that can catalyze your creativity at work.”

The distinction between creative and destructive stress comes from Richard Lazarus’s work from the 1960s. In a recent study (Ren & Zhang, 2015), two Chinese psychologists looked at data from 282 employees in a variety of industries, and found that the good stressors are positively correlated with individuals and teams at work being more creative and generating more ideas. Litigation is obviously a stressful situation. You might even say it is designed to maximize and channel stress. The attorneys, right in the middle of that battle, might sometimes fail to appreciate the amount of stress placed on co-workers, clients and witnesses. The witnesses in particular, face a challenging assignment, and whether they’re experiencing the good stress or the bad stress can make all the difference. In this post, I will look at a few of the specific situational factors applying to witnesses during the preparation stage that, according to the researchers, can make for either good eu-stress or bad dis-stress. 

Cultivate the Good: Eu-Stressors

The so-called “eu-stressors” are also called “challenge stressors,” and they are factors that make a situation tough but still workable. These are the good stressors that can maximize performance.  

Time Constraints

Deadlines drive results, and knowing that there is a set amount of time can make us more efficient. That suggests that, for witnesses, a shorter focused session might be better than an open-ended marathon meeting. And during that session, it helps to encourage sustained periods of time where the witness stays in practice mode long enough to understand how slowly time will pass while they’re testifying. 

Sufficient Work

Lawyers and others know that they’re happier and more productive when they have sufficient work, since passivity is stressful in its own right. A substantial but manageable workload creates the right kinds of stress for better performance. To model that workload for witnesses, it helps to provide them with “homework” following the preparation session: Review the relevant documents and any prior testimony, think about the following key questions, and be mindful of a few communication habits we have discussed.  

Clear Expectations

Expectations create stress, but when the expectations are clear, the stress is productive. For witnesses, the expectations for testimony should come down to some clear and specific principles of testimony. Instead of impressing on the witness how important or how challenging the testimony will be, focus on what the witness should do: the “rules of the road” for savvy and effective communication. 

Avoid the Bad: Dis-Stressors

The so-called “dis-stressors” are also called “hindrance stressors,” and they are factors that make a situation seem to be unmanageable. These are the bad stressors that can seriously harm performance.  

Distractions

In an employment context, an atmosphere of bickering and gossip contribute to stressful distraction. To avoid distraction for a witness, don’t bring baggage into the preparation session. Focus on all of the aspects of the case that affect this witness’s testimony, but stick to just those issues. Discussing facts and questions that don’t bear on their testimony can just add to their general feelings of fear, uncertainty, and a lack of control.

Red Tape and Logistics

Bureaucracy is another harmful stressor. For that reason, do not spend unnecessary time on the legal system’s rules and formalities. Witnesses need to understand that they’ll be taking an oath and telling the truth, but focusing on the mechanics of the law, the claims, and the myriad objections can be formalistic distractions. Instead, a witness should focus on broad goals: Bottom line, we want jurors to understand what happened from your perspective

Job Confusion

In a work setting, job uncertainty adds to stress, and for a witness, the question “What am I supposed to do?” is similarly stressful. Instead of just having a meeting with the witness to discuss the case issues, have a practice session where you mock the conditions of actual testimony as realistically as possible. That way, the witness’s understanding of what they are supposed to do is applied, concrete, and behavioral. After a good preparation session, the witness knows what to expect. 

Of course, with all of this the preparation and the testimony will still be stressful…and it should be. But it should be the right kind of stress.  

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Other Posts on Witness Stress: 

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Ren, F. & Zhang, J. (2015).  Job Stressors, Organizational Innovation Climate, and Employees’ Innovative Behavior. Creativity Research Journal. 27, 16-23

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September 1, 2016

Don’t Assume Looking Up Means Lying (But Do Assume Jurors Might Think That)

By Dr. Ken Broda-Bahm: 

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There is quiet in the courtroom after the key witness on the stand is asked the critical question. As the jury, judge, and counsel wait for the answer, the witness pauses, looks up toward the ceiling, then looks back down, and answers.

That scenario invites two questions. One, why look up? The person asking you the question is at the lectern in front of you. The target for your answer is in the jury box to your side. Nothing – certainly not the answer – is on the ceiling. And two, what do the jurors make of that? Is it simply a thoughtful hesitation, a moment to collect your memories, or is it a sign of something worse?

That shift of gaze, looking up or away while thinking, is a small gesture, but it is common enough that it merits mention when considering witness communication. It turns out that there is a pretty good reason why we do it, along with a pretty good reason why we ought to be wary about doing it while testifying. In this post, I will look at some interesting new research on the question of why we tend to look up or away while recalling, and also share some old but persistent perceptions on how that is interpreted.

Why Look Up When Recalling?

The answer comes down to the conservation of cognitive resources. It turns out that we depend on visual processing when recalling some kinds of information. For that reason, we unconsciously want to “rest” our current visual processing by looking at something flat, inactive, and uninteresting, like a wall or a ceiling for example. That makes it easier to use the brain’s visual centers for recall rather than for active processing.

This explanation was tested in recent research (Emiston & Lupyan, 2017) showing that disruptions to visual processing do indeed make it harder to recall visual information. Gary Lupyan and Pierce Edmiston of the University of Wisconsin, Madison’s psychology program conducted the study, also covered in this ScienceDaily release. They asked volunteers questions that required them to quickly verify information while watching a screen. Some questions asked for visual recall (“Do alligators have tails?” “Do tables have flat surfaces?”) and others asked for more categorical recall (“Do alligators live in swamps?” “Are tables furniture?”). As the participants recalled the information, the researchers would deliver a burst of visual interference, described as a “colorful static noise,” to the screen they were monitoring. What they found is that the visual interference caused participants to take longer with the visual recall. “Visual interference selectively interrupted their ability to answer questions about the visual properties of objects. They had trouble trying to recall that kind of information,” Edmiston says. “But it didn’t change how good they were at accessing what they knew about the nonvisual properties of the same objects.”

What that means is that, even after learning visual information, we continue to depend on visual perception in order to recall that information. So memory doesn’t work by just taking in an image and converting it to data for later use. Instead, we still need to “see” it in our minds’ eye in order to recall it. That explains the practical habit of wanting to look away in order to recall. Gary Lupyan explains, “Many people, when they try to remember what someone or something looks like, stare off into space or onto a blank wall. These results provide a hint of why we might do this: By minimizing irrelevant visual information, we free our perceptual system to help us remember.”

But What Do Jurors Make of It?

I recall one juror at a mock trial telling me confidently that one particular witness was not to be believed. Why? Because the witness looked up and to the right, and this witness had read that looking up and to the right means the witness is lying. I had another juror tell me with equal confidence, that the problem is looking up and to the left. Turns out the first juror is recalling it correctly, but there really isn’t any truth behind it. As I’ve discussed in a previous post, the idea is most often attributed to a once-popular psychological approach called “Neuro-Linquistic Programming” or NLP, but studies (e.g., Wiseman et al., 2012) have shown liars are not more likely than non-liars to look up or in any particular direction, and individuals trained in spotting that eye movement do not fare any better than chance when it comes to detecting deception

Whether false or not, however, the message has gotten out, and there is always the risk of having one or more amateur face readers on your jury. For those jurors, a witness who is simply trying to be careful or thorough ends up signaling dishonesty or a lack of confidence.  

So What Should Witnesses Do About It?

In trial or deposition, attention to small factors can make a big difference, and one of those factors is gaze. I see three implications.

Assume Jurors Will Misinterpret

This is another example of that which is normal and understandable in conventional situations ending up being risky in the crucible of heightened attention that accompanies testimony. Even if shifting one’s visual gaze is understandable and even beneficial to accurate recall, jurors are unlikely to see it that way. In interpersonal contexts, we still tend to equate steady eye contact with confidence and shifty or averted eye contact with dishonesty.

So Handle Your True Recall During the Preparation Session

The typical witness will need to provide some answers that aren’t fully recalled at the time the question is asked. But well-prepared witnesses will have been asked that question in advance of trial or the deposition. They would have been asked during the preparation session. When it is just you, your attorney, and maybe your trial consultant, there is no harm to looking up or doing whatever else you need to do in order to recall the best answer. And once that answer has been practiced, it should be easy to recall without the need for any hesitation or gaze-shifting.

And Keep Your Focus on Target During Testimony

As we have written before, audiences value eye contact. Even when the target audience isn’t physically present, as in the case of a video-recorded deposition, that audience can still tell whether a witness is looking at their questioner or whether they are looking elsewhere. So during depositions, keep a consistent focus on the questioner, and during trial, keep a consistent focus on the jury.

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Other Posts on Memory and Gaze

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Edmiston, P. & Lupyan, G. (2017). Visual interference disrupts visual knowledge. Journal of Memory and Language, 2017; 92: 281 DOI: 10.1016/j.jml.2016.07.002

Photo credit: 123rf.com, used under license

July 21, 2016

Treat Memory as Functional, Not Photographic

By Dr. Ken Broda-Bahm: 

Apple Logo

Without looking at the back of your laptop or phone, which of the images above is the true Apple logo? You probably see it every day, many times if you are in offices or airports. It is considered one of the most recognizable logos in the world. But which version is correct? In a 2014 study (Blake, Nazarian & Castel, 2014), 85 UCLA students were asked to pick the true logo from the choices above, and 84 picked the wrong image. And it wasn’t due to a lack of familiarity: Fully 75 of those students owned Apple products, and 52 of them exclusively used Apple computers and handhelds. Asked beforehand, the students were very confident that they knew what the logo looks like, but all but one of them were unable to pick the right logo out of the lineup. 

Why? Because memory is functional rather than photographic. If “knowing” the Apple logo meant having a complete image of it in our heads, then it would be easy enough to pick out the right one. But memory doesn’t rely on images. Instead it relies on the “gist,” for lack of a better word, of what is represented. We know it is an apple, and we know that it is stylized, and that it is a negative (white-space) image. But we don’t necessarily know where the bite is, whether the leaf leans left or right, and whether there is a divot in the bottom of the apple or not. Why not? Because we don’t need to remember that in order to remember the image. We tend to believe that experience equals knowledge and that confidence equates to greater certainty. But according to study author Dr. Alen Castel, it doesn’t. “There was a striking discrepancy between participants’ confidence prior to drawing the logo and how well they performed on the task. People’s memory, even for extremely common objects, is much poorer than they believe it to be.” Witnesses and others carry that same flawed memory into court. Where jurors might expect memories to be either pristine photographs or to be nonexistent, the truth often lies somewhere in between: a gist that is remembered for functional reasons, but not the specifics. We remember what is important, but that sense of importance can be idiosyncratic or unreliable. In this post, I’ll look at what that means for witnesses and witness examination. 

We have all heard of the idea of a “photographic memory,” where some individuals are believed to be able to snap a mental image of anything — a scene or the page of a book — and store it for later examination. However, that notion of photographic memory has never been definitely proven to exist. Instead, we all have a kind of “photographic” memory only in the sense that our memory for visual content is more detailed than our memory of other material. Still, what we are relying on is highly-processed reconstructions that are heavy on some details and light or absent on other details. 

That selectivity is driven by perceived importance. The best example of that is the “gun effect” that relates to eyewitnesses. In an armed confrontation, the witnesses can end up having very fuzzy memories of faces, clothing, or other details. Why? Because they were staring at the barrel of a gun. In more normal contexts, that functional focus can end up being surprising. The study authors note that we have difficulty identifying the correct locations for features on a dollar bill or a penny. “Explicit memory,” they note, “is also poor for items that people interact with daily, such as the keypads of calculators, telephones, computer keyboards, the layout of frequently-used elevator buttons, and aspects of road signs.” We wouldn’t remember those specific features because we don’t need to remember them in order to use the items. 

The fact that memory is driven by function provides a few reminders for witness testimony. 

Jurors (And Witnesses) Can Be Too Absolute About Memory

Either you remember it or you don’t. When we think of memory as a picture in our heads, it can be tempting to implicitly hold that all-or-nothing view. When the attorney asks, “Do you have a recollection of Ms. Smith?” the answer, for Ms. Smith’s treating physician for example, probably falls somewhere along a spectrum from “everything” to “nothing.” It helps to ground your answer if you place it somewhere on that spectrum: “I do not independently recall everything about her and her treatment, but I do have a very general recollection of her as a patient.” 

So Justify Why You Recall

Sometimes remembering too much can be suspicious. After all, when the doctor sees hundreds or even thousands of patients in a month, why would she remember that particular one. Remembering that memory is functional helps to suggest an answer:

Because it was an unusual outcome.
Because I reviewed the charts afterward and that refreshed my recollection. 

And Justify Why You Don’t

In other situations, remembering too little can be suspicious. In the likely event that a treating physician has no direct recall of a patient, that needs to be acknowledged without guilt: “That was two years ago, and I have seen a great many patients since then.” When parts of the interaction are recalled, but some other details are not, then justify the difference: “My focus was on caring for the patient, so while I am sure that I had discussions with the family members in the waiting room, I don’t remember those discussions at this point.”

By the way, on the logo choices above, the correct one is ‘B.’

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Other Posts on Memory: 

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Blake, A. B., Nazarian, M., & Castel, A. D. (2015). The Apple of the mind’s eye: Everyday attention, metamemory, and reconstructive memory for the Apple logo. The Quarterly Journal of Experimental Psychology, 68(5), 858-865.

Image Credit: Study stimulus (Blake, Nazarian & Castel, 2014) with title added. 

July 11, 2016

Witnesses, Know When to Use Your Own Words

By Dr. Ken Broda-Bahm: 

Slide1

I frequently travel around the country to meet with attorneys in order to help them get witnesses get ready for deposition. As we share our best practices, I will sometimes notice that there is a difference of opinion over how much or how little a well-prepared witness ought to say. Some attorneys, it seems, have been schooled in the “Less Said, the Better” school of witness preparation. I, on the other hand, often want to make sure that the record of testimony ends up being in the witness’s words, not the opposing counsel’s words, and that means encouraging witnesses to speak for themselves. For the witness, it can be a source of confusion: One of my advisors likes it when I say less, and the other likes it when I say more…. Adding to the confusion, the preference often varies by question: We’ll both agree that less would have been better on this question, but more would have been great on that question. 

What’s the answer? During a recent witness preparation session, I think I hit upon a rule of thumb that might be useful both for witnesses as well as those who prepare them. It comes down to identifying and adapting to the purpose of the question, and giving less when the purpose is just to gather information (a short answer or a simple “Yes” or “No”), and giving more and making sure it ends up in the witness’s own words when the purpose is more to make a point or advance an argument. In this post, I will take a look at the thinking underlying both the “less” and the “more” camps, and flesh out the decision rule on when to do one rather than the other. 

The “Less is More” Camp:

Your client’s deposition is being taken for a purpose, and it is the other side’s purpose. The witnesses aren’t there to make their case, they’re there just to answer an adversary’s questions on the record because the law requires it. That’s it. They have a responsibility to answer honestly, of course, but no responsibility to do anything more than that. Every word that goes beyond the simple “Yes” or “No” is just giving opposing counsel something to work with, possibly offering a gaffe or potentially opening doors to more questions. 

Testimony is simpler, more controllable, and less useful to the other side when it sticks to the basics. So the bottom line advice from this perspective? Just answer the question, and often that means “Yes,” “No,” “I don’t know,” or “I don’t remember.”

The “More is More” Camp

Sure, the deposition isn’t the time to make your case, but it is the first official record of the witness’s testimony. And perhaps more importantly, it is a key opportunity for case assessment, allowing opposing counsel and possibly experts, mediators, and others to see how well the witness will do. Potentially, that testimony can be used in court, via either read testimony or a video clip. For that reason, it is important for the witness to be the witness, and that means using your own words and not opposing counsel’s words. Leading questions can be phrased to suggest a simple, “Yes” or “No,” but still be misleading or incomplete. For example, 

Q: You had a CT scan available didn’t you? 

A: Yes. 

Q: And it would have been relatively cheap and easy to have used it, wouldn’t it? 

A: Yes. 

Q: But you didn’t use it, did you? 

A: No. 

That exchange creates the impression that the doctor-defendant simply omitted the easy and obvious step. But the answer, “No, because a test like that was not indicated by any symptoms” is much better. 

For Some Witnesses, a Decision-Rule 

The rule comes down to sensitivity to arguers purpose: 

When the question is just seeking information, answer briefly. 

But when the question is setting up an argument, answer in your own words. 

A “Yes” or “No” is fine for the question, “Have you authored any peer-reviewed articles?” but not for the question, “You didn’t order a CT scan, did you?” because the latter, particularly in the context of a chain of questions, has an argumentative purpose. I don’t mean “argumentative” in the sense that justifies an objection, e.g., by asking a witness to draw an improper inference. Instead, I mean that it seems designed to help build counsel’s overall argument against you. 

One clue to whether the question plays that role is whether it is leading. Pointing the witness toward preferred conclusions and language is a red flag that the questioner is no longer seeking answers but is instead seeking agreement. When the attorney shifts toward that purpose, the witness should shift toward answers that, while still brief and to the point, are framed in the witness’s own terms. 

But here is why this is only a solution for some witnesses: It requires a reasonable sensitivity to the questioner’s purpose. The witness needs a reasonable understanding of when they’re asking because they want to know and when they’re asking because they’re trying to create an argument. If a witness is oblivious to that distinction, isn’t able to intelligently assess the questioner’s purpose, or if a witness is distracted by that focus and unable to take each question as it comes, then the attorney and consultant running the preparation session should default to one or the other camps above. Personally, I think the habit of often to always using one’s own words is a good habit. But when the witness is savvy and able to understand what opposing counsel is doing, it is also a good tool to vary their level of completeness in response. 

How can you tell if your witness is able to do this? By having a witness preparation session, and one that focuses not on just talking about the case, but instead focuses on practicing via a mock deposition. 

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Other Posts on Language Use By Witnesses: 

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Image credit: Created by the author

July 7, 2016

Women in Court: Go Easy on the Cosmetics

By Dr. Ken Broda-Bahm: 

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This belongs in the category of not necessarily fair, and not necessarily logical, but generally true: Cosmetics are important to how women are perceived, and wearing makeup on one’s face does convey a better impression. That difference in perception goes to credibility, and for that reason, most female witnesses and attorneys cannot afford to just skip the cosmetics. Based on the social science, the makeup has two main functions bearing on perception: One, it makes the skin tone more uniform, and two, it creates greater distinctions between the features, in effect outlining the major landmarks of eyes, lips, and cheek bones.

Now, as a male writer, I can’t fully appreciate the social pressure, and can only imagine how it would feel to know that, based on society’s view, my face is just not enough, and needs some enhancement in order to be viewed in public. I suppose that could be looking at it the wrong way, though. Makeup could be seen as just a way to add creative diversity to human appearance, and women can get away with it, but at this point men — at least those who aren’t members of Duran Duran or the New York Dolls — really can’t. Only in practice, for women it isn’t so much an opportunity to use makeup, as a penalty for not using makeup. According to the social science, both men and women will evaluate women negatively for not using cosmetics. So being credible in a courtroom context most likely requires awareness of and adaptation to that social convention. But it is not so simple. New research (Mileva, Jones, Russell & Little, 2016) indicates that men and women react differently to makeup. Practical experience also adds that how makeup is worn matters as well, and a natural look and “a little goes a long way” is probably the best advice for the courtroom.

The Social Science: Cosmetics Convey an Advantage

The recent research  (Mileva, Jones, Russell & Little, 2016) used realistic photographic manipulations to show the same faces with and without cosmetics, asking participants to rate the photos on a number of factors. The authors helpfully review much of the prior research. As discussed in that article, women who wear cosmetics are viewed as: 

  • Healthier
  • More attractive
  • More feminine
  • Higher social status
  • Higher paid 

The new study results were in line with that tendency as well. “We found that men and women both viewed the faces of women wearing cosmetics as more attractive and as higher in status.” However, they observed one interesting difference that separated the reactions of male and female research participants. 

The Difference: Men See Prestige, and Women See Dominance

Prestige and dominance are seen as two distinct routes to influence. Dominance refers to influence through power, force, or intimidation of a particular group. Prestige, in contrast, is influence that is conferred by the respect from a particular group. As the authors summarize, “prestigious individuals are looked up to by members of their group, while dominant individuals are generally feared.” So, it boils down to a comparison of positive and negative power. While both work to exert influence, prestige is more highly valued. 

In that context, it is interesting that female research participants saw those with cosmetics as higher in dominance, while male research participants saw them as higher in prestige. In a follow-up study, the researchers found one possible explanation for women viewing the madeup as having the more negative form of power: jealousy. Women reported greater feelings of jealousy toward the women wearing cosmetics. That might sound like a stretch, but perceptions can often hinge on small factors. One implication is that if your jury is dominated by women, a female witness or attorney may want to go extra-light on makeup to make sure it isn’t calling attention to itself.

The Advice: Use What Makes You Comfortable, But Take It Easy

It is probably a good idea in general to make sure that any cosmetics don’t appear to be too-heavy or unnatural. I think it is useful to look at one of the stimuli images used in the study. The image below, with makeup on the right and without on the left, is a composite developed from photographs of 45 different women with the makeup added by computer. 

Slide1

The difference is noticeable, of course, but still relatively subtle. The face on the right with cosmetics is not garish and the makeup doesn’t call attention to itself: That’s a good rule of thumb.

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Other Posts on Appearance:

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Mileva, V. R., Jones, A. L., Russell, R., & Little, A. C. (2016). Sex Differences in the Perceived Dominance and Prestige of Women With and Without Cosmetics. Perception, 0301006616652053.

Image credit: 123rf.com, used under license

 

February 18, 2016

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

By Dr. Ken Broda-Bahm: 

IDK ppt

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. 

A key message for witnesses to take from the preparation process, however, is that there is great power in “I don’t know.” When it is used thoughtfully and accurately, it is one of many ways to keep the other side from gaining what they have not earned. When the witness doesn’t know, and when the witness shouldn’t be expected to know either, then being comfortable and confident in one’s “I don’t know” will make for a harder examination and fewer mistakes. As simple as that advice is, the subject might benefit from more than the top-level explanation. After all, the fact that it is such a common temptation suggests that there are powerful forces pulling witnesses away from the safety of their own knowledge. In this post, I will take a quick look at why witnesses sometimes avoid the “I don’t know,” some of the ways they try to avoid it, and a few alternative ways to say it that might be more comfortable. 

What Makes Witnesses Uncomfortable With “I Don’t Know”? 

For attorneys, consultants, and witnesses themselves, it helps to be aware of the forces that can push witnesses away from an honest “I don’t know.” In my mind, those forces boil down to some understandable desires.  

  • We Want to Be Helpful

It may not be a conscious wish to help the other side (and if it is, then you have problems that stem beyond witness preparation), but there is a natural human tendency for us to try to be helpful in communication. If someone is asking, it must be because they think we know. 

  • We Generally Want to Look Smart

We learned in school that passing the test means knowing the answer. In the new kind of “test” of a deposition or trial testimony, not knowing the answer feels like failure. A knowledgeable witness, we think, would be able to answer. 

  • We Specifically Feel, “I Should Know This”

In some cases, there may be a basis for that feeling. If we should know, but don’t, then it is a sign that either the attorney didn’t let us know what to expect, or we didn’t do our homework in getting ready for the testimony. 

  • We Fear Closing the Door on Future Knowledge

What if we don’t know the answer now, but we might remember it later. That might encourage hedging just as a way of keeping our foot in the door. Phrases like “Not that I recall right now,” can help to keep that door open for the possibility of a more complete answer down the road. 

How Will Witnesses Act Like They Know When they Actually Don’t? 

Some of these are habits and human tendencies that occur without a lot of conscious thought. But one important goal of witness preparation is to teach and practice the witness out of those habits. 

  • We Will Speculate

When you don’t know the answer, but you still want to answer, then you guess. Witnesses need to not just be told (more than once) not to speculate, but they also need to understand the difference between estimating and guessing, as well as how to put some parameters and qualifiers around any answer based on uncertain knowledge. 

  • We Will Be Tempted Into Hearsay or Privileged Communications

Maybe we don’t know, but we talked to someone who does know. That someone might be another party, or it might be our own legal team. In either case, that probably isn’t the answer. The witness needs to understand that the proper sphere of questioning is what the witness knows and not what he heard from others. Applying that distinction can be tricky, though, and benefits from practice. 

  • We Will Share What They Know on the Topic, Not the Question

Here’s another one that can find its way out as an unconscious response. We don’t know the answer to the question itself, but we do know something on the subject that the lawyer is asking about. Here the witness needs to focus on the question and not the broader topic. If you don’t know the answer, it doesn’t matter what else you know. The answer to the question is, “I don’t know.”  

So How Should Witnesses Say “I Don’t Know”? 

It shouldn’t be hard. Once the witness is talked out of reasons and temptations listed above, the simple and easy “I don’t know” waits on the other side. But it can still help to keep in mind a few different ways to say it. 

  • Say What You Do Know

If you know part of the answer, but not the whole answer, then it can be okay to share what you know. If the lawyer asks a doctor how many procedures she does in a year, it works to say, “I don’t know, but it is probably between fifty and seventy-five.” 

  • Say What You Would Have to Review in Order to Know

If you would have to review a document in order to give a definite answer, then say so: “To say whether the patient’s vitals were normal or not, I would need to look at the chart.” Sure you have some responsibility to review that beforehand, but that doesn’t mean memorizing it. When you’re on the record, you want to be sure, so ask for the documents.  

  • Say Who Would Know (If You’re Sure) 

If the nurses would know, but the doctor wouldn’t, then say so: “You would need to ask that question of the nurses who were doing the hourly monitoring.” Before you say who knows, however, be sure that you are correct, and not putting that party in a difficult spot.  

  • Or Just Say “I Don’t Know” 

Of course, sometimes the simplest is the best. There is no need to justify or defend your lack of knowledge on something. Once you have prepared, your only responsibility is to testify about what you know. So don’t use it as a crutch or an excuse, but if you don’t know, you don’t know. 

In examination, the questioning attorney sometimes plays on the human tendency to be creative, to fill in, and to add more. And that can be a strong tendency. Look at me, after all, I just wrote an entire post on saying “I don’t know.” 

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Other Posts on Witness Testimony: 

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Image Credit: Created by the author

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