Category Archives: Witness Preparation

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

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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Other Posts on Witness Preparation: 

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

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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. 

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

Image credit: 123rf.com, used under license

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

August 15, 2016

Prepare Your Witness: Top 10 Posts

By Dr. Ken Broda-Bahm: 

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

OneBottom Line Your Deposition Advice: Four Rules

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

TwoDon’t Be Led (in Deposition)

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

ThreeCounterpunch: Ten Ways to Fight Back on Cross

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

FourAvoid Distractions on the Stand

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

FiveWitnesses, Don’t Get Too Comfortable

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

SixPractice Mentally

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

SevenWitness, Don’t Teach (in Deposition)

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

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

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

NineBe Realistic About Hypothetical Questions: Four Ways to Answer

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

TenAvoid Gaze Aversion in Your Deposition Video

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

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Other ‘Best of’ Posts: 

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Image credit for top image: 123rf.com, used under license. Credit for other images in full text of each post

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