Tag Archives: witness

September 23, 2013

Give Your Witness a Good Foundation: A Review of “The Perfect Witness” Online Training

By Dr. Ken Broda-Bahm:


Knowledge practice 3
Litigationworld-200A significant chunk of a witness’s preparation for deposition is going to be case-specific, and an even larger portion should focus on direct practice. But at least some of it will nearly always involve conveying the basic principles of good testimony: the do’s and don’t’s that apply to all deponents. To handle that basic and common phase of the preparation process, a new company is offering a quick online course. The Perfect Witness allows attorneys to register online, and then send invitations to a witness to complete a video course laying out the basic deposition rules and providing examples of good and bad communication behaviors. The attorney is able to check whether witnesses have completed the roughly 60-minute, eight-segment series, and can see how they did on the comprehension checks that appear after each segment. 

The site has been mentioned recently in a couple of high-profile blogs. Robert Ambrogi’s LawSites blog post titled “Website Promises to Prep Your Witnesses for You” suggests that the idea is good in theory, but notes that there are other resources available for free on YouTube. Scott Greenfield in his Simple Justice blog is considerably more hostile to the idea, calling it “a gimmick” and a purported “magic bullet video.” Because Ambrogi says he hasn’t seen the video, and it seems likely that Greenfield hasn’t either, I decided to reach into the Persuasion Strategies coffers to pony up the $119 to check it out. After viewing it, I can say the skepticism isn’t warranted. The video series is clear, extremely well-executed, and effective in quickly but thoroughly covering nearly all of the basics I typically share with an inexperienced deponent. No gimmicks involved. Ambrogi’s title notwithstanding, the video also includes the clear advice for deponents to not just rely on an understanding of the rules, but to practice with their own lawyer as well. Unlike the free resources on the internet, The Perfect Witness allows attorneys to check the witness’s completion, and unlike a DVD, the online resource adds interaction by embedding multiple-choice and true/false questions along the way. 

After going through all eight segments (and getting a perfect score on the questions, I might add) I am ready to endorse The Perfect Witness. As long as a few commonsense rules are followed — like not using the training as a substitute for in-person meetings — the online training resource is a solid and useful addition to any litigator’s or consultant’s toolbox. 

Does “The Perfect Witness” Compete with Attorneys and Consultants?   

At first blush, that endorsement coming from someone like me could be surprising. After all, I am a litigation consultant and a fair amount of my work involves meeting with attorneys and witnesses to prepare for deposition. So, do I see The Perfect Witness as competition? No, I don’t, and attorneys shouldn’t either. 

Let’s look at it this way: At $119, the program is priced at about a third of my hourly rate (…so just think how valuable all these blog posts are). When covering the basic principles of good communication, I’m not going to kid myself that I could convey these basics any better in 20 minutes than this well-produced and illustrated video series does in around 60 minutes. But that doesn’t mean I’m out of a job, because the basic foundation covered in The Perfect Witness is just that: a foundation. To be useful and to translate into better deposition testimony, these basic principles need to be built upon by being applied to the case at issue and by being practiced extensively. 

The Perfect Witness and programs like it do not compete with a good attorney and a good consultant. At our rates, our time should be spent where it matters most: not on covering the routine principles that apply to all witnesses, but on doing the more difficult and sensitive work of applying these principles to the facts at hand, and practicing the testimony until it is a perfect fit for the individual witness.  

So What Does “The Perfect Witness” Tell Witnesses to Do? 

The basic advice on how one should and shouldn’t behave at a deposition is probably old-hat to most attorneys and all consultants, yet still it needs to be conveyed to nearly every inexperienced deponent, and to many who have been prepared and deposed in the past. Using well-acted scenarios drawn from an employment sexual harassment case, and giving equal emphasis to plaintiff and defense perspectives, the videos cover points that are familiar, but critical:

  • Always tell the truth
  • Pay attention to your nonverbals
  • Dress appropriately
  • Practice using video
  • Understand opposing counsel’s goals
  • Avoid traps set by opposing counsel
  • Don’t be rushed
  • Let the questioner finish
  • Pause before answering
  • Take breaks
  • Listen to objections
  • Answer one question at a time
  • Answer only the question asked; don’t volunteer
  • Don’t answer a question until you understand it
  • Never guess or speculate
  • Don’t argue with the lawyer
  • Don’t try to tell your whole story

Of course, it is more organized than that. The developers have structured and selectively emphasized this advice based on five rules: 1. Never lie; 2. Always understand the question; 3. Use a purposeful pause; 4. Answer only the question asked; and 5. Never guess. If you had to pick five, that isn’t a bad list to start with. 

Should We Fear Juries or Opposing Counsel Learning About “The Perfect Witness”? 

Commenter Celia Elwell on the LawSites blog writes “Juries may not like the idea that the witness was ‘trained’ (they may think ‘coached’). I’ll pass.” I won’t speak to the law on whether a witness’s use of The Perfect Witness is discoverable at deposition, but I think that wisdom is on the side of caution. Users should assume that a witness’s viewing these videos outside the presence of counsel could be discovered in response to the question, “What did you do to prepare for this deposition?” So, would there be any concern with opposing counsel standing before the trial jury and saying, “Ladies and gentlemen, let’s take a look at the confidential instructions witness Smith received before his deposition: Roll the tape!” 

I viewed the training with exactly that scenario in mind. At the end, my feeling was, “No, I wouldn’t mind at all if opposing counsel did that… in fact, it would be kind of cool if she did.” The reason is this: The video focuses repeatedly and emphatically on telling the truth. And as for the rest of the list above, there is nothing insideous about a witness wanting to be clear and careful. Jurors are likely to appreciate the effort and seriousness. If jurors put themselves in the shoes of the witness, as they’re apt to do, the likely reaction is, “Yes, I would have wanted to have seen something like this in advance if I ever had to testify.” 

So, Bottom Line, Do You Recommend It? 

I do. After reviewing it, I think The Perfect Witness usefully, efficiently, economically, and safely covers the basic principles of good deposition communication. Still, there are three important rules that attorneys or consultants should follow when using this resource or others like it.  

1. Use It as a Supplement to, Not a Substitute for, In-Person Preparation.

As commenter “Lauren H.” notes after the LawSites blog post, “Witness testimony must be ‘case specific’ – there is no ‘stock’ right or wrong that can be taught a witness. This is poppycock!” But nothing in the training or the promotional materials suggests that it should stand alone as sufficient preparation for a deposition. As noted above, the video itself recommends direct practice and videotaping with an attorney. Still, I think it is a “foreseeable misuse” of the program if time-pressured attorneys mistakenly thought “you’ve been prepped” after sending the witness to this online school. 

That would be a mistake, however, and the program should not be used in that way. As long as it is a foundation for follow-up meetings, and a way to more efficiently use attorney, consultant, and witness time, then it is a net good. In disagreement with the commenter, I think there are some relatively “stock” rights and wrongs regarding deposition communication, as summarized in the bullet list above. If litigators have an efficient way to get those across prior to the more substantive training, then why not use it? 

2. Review the Video First.

As shown by the list above, the material covered in the videos is basic, and I believe widely accepted by attorneys and consultants alike. There are no radical practices or controversial strategies hiding in the program. Still, we all have our own take on what works when preparing witnesses. And, more basically, attorneys must take responsibility for anything they give a witness. They need to be able to say, “I’ve seen it, and I agree,” or “Here is a point I would emphasize differently from what you saw on the video.”

To facilitate that review, the owners of The Perfect Witness should provide a reduced price for a preview, or even allow a free preview to anyone who registers or holds a current ABA membership.  

3. Don’t Accept Everything.

While the eight video segments generally convey the common wisdom, there are naturally a few points where I and others might differ. For example, I could see the advice to “think like a lawyer” being taken the wrong way. It is definitely wise to understand the basic strategy of what opposing counsel is asking and why. But it is definitely dangerous to take that to the point of trying to “out-lawyer” your adversary. A witness who tries to be too clever or too legal risks being perceived as more tactical than honest. Witnesses should be aware of what opposing counsel is trying to do, but while “thinking like an honest witness,” not “thinking like a lawyer.” 

An additional point of difference relates to the importance of good nonverbal communication. Both the video and the follow-up quiz note the need for making a good visual impression “when the deposition is videotaped.” But even when it isn’t, witnesses are still making an impression on opposing counsel and demonstrating what kind of witness they’ll be at trial. Because these assessments often drive settlement, I always recommend that it is wise to show your best, camera or no camera. 

The most important point of difference, however, relates to leading questions. Missing is the advice for deponents to answer in their own words. In contrast, the video content and the follow-up questions note that “the four best answers a witness can use in a deposition are ‘Yes,’ ‘No,’ ‘I don’t know,’ and ‘I don’t remember.'” I disagree. In my experience, a hallmark of a good deposition is that the witness chooses her own language instead of uncritically accepting counsel’s words. That doesn’t mean straying from the question, and it doesn’t mean filibustering. Answering in a simple but complete sentence is one of the best ways to resist being misled and to protect the deposition record. 

There is one additional thought about the online training that I want to note. Both blogs that looked at it so far have raised the point of the site not having a clear author, or as Greenfield describes, it “conceals its owners.” While the website is not very clear on the personnel involved, I did find that with a simple email to “support@theperfectwitness.com,” I learned the name of the Houston construction attorney who is behind it, so I don’t think there is anything sinister at work. Out of an abundance of caution, they probably don’t want to be associated with a named law firm. Still, I would recommend that the owners create a more comprehensive “About Us” page on the website, focusing on the background and specific experience of those who designed the training, including those who developed the script and the examples. No real issue, but users will probably be more comfortable having that information. After all, it is one of the principles that drives witness preparation: Source credibility matters.

Bottom line: The Perfect Witness provides a good foundation for preparing a deposition witness. 

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Note: Reviews aren’t the focus of this blog, but I do occasionally review litigation-related products, and I’ve given both good and bad reviews. It should go without saying, but these days it doesn’t: This is an independent review. I’ve received nothing for it, and I have no relationship – business, personal, or otherwise – with “The Perfect Witness” or its creators. 
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Other Posts on Deposition Preparation: 

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Image Credit: Created by the author.  

May 3, 2012

Test the Credibility of Your Turncoat Witness

By Dr. Ken Broda-Bahm: 

Judas Edited

Not all witnesses are saints. While this is especially well-known in the realm of criminal prosecution, it applies in civil trials as well. A witness may carry some unsavory background, or the context may simply be such that their testimony – truthful or not – feels like betrayal. The same factors that apply to the stereotypical “jailhouse snitch” can also apply in a variety of situations: a whistleblower, qui tam relator, or expert witness testifying against a member of the same profession. A doctor criticizing another doctor’s work, for example, may be viewed as breaching the basic human tenet of loyalty, and for that reason, the witness may be distrusted. 

One current example of a perceived “Judas Witness” can be found in Andrew Young, the government’s star in the ongoing trial of John Edwards in North Carolina. The close confidant and all-around personal assistant for the Senator and presidential candidate was, at one time, so loyal to Edwards that he was willing to do not just the handyman work and to buy Edwards’ Christmas presents for his children, but to hide the candidate’s affair with a documentary filmmaker during the campaign. So great was Young’s loyalty that he even agreed to claim to be the father of John Edwards’ love child in a failed attempt to quell media speculation. Now this same self-sacrificing lieutenant is key to the Justice Department’s claim that Edwards violated campaign finance laws by using donor funds to keep the mistress out of the spotlight. While some of the criticism of Young as a witness has focused on his mumbling inconsistencies and his admitted self-interest (he apparently diverted some of the funds to help finance his dream home), part of the response we may see from the jury could also stem from the factor of disloyalty. Applying a recent analysis of loyalty in a legal context (Rich, 2010), this post takes a look at ways to bolster the credibility of the “turncoat” witness. 

Witness Loyalty

While the unique situation of the criminal informant who turns state’s evidence in order to bring his colleagues to justice is well-known, there isn’t much written about the problem, especially as it relates to the more general question of witness credibility. One manuscript I stumbled upon, “Lessons of Disloyalty in the World of Criminal Informants,” written by Michael L. Rich, takes a broad and philosophically informed look at the betrayal factor, including recent “Stop Snitching” movements in major cities. Starting with the observation that “society roundly condemns disloyalty as immoral,” the law professor digs deeper into a number of scenarios and illustrates that we tend to disapprove of disloyalty even when the actor is not himself guilty of wrongdoing (e.g., the innocent citizen reporting on her neighbors), and even when the actor is serving a greater good (e.g., preventing a crime by reporting on a family member). When we see an action as worthwhile (e.g., the case of an ethical whistleblower), it is generally not because the disloyal act is seen as good in itself, it is because the benefits of the act appear to outweigh the harms of disloyalty. Rather than just looking at outcomes and viewing the quality of loyalty as morally neutral, we tend to view disloyalty as a negative that may or may not be outweighed in a given case. 

In the case of Andrew Young, it may be that his testimony simply leads jurors and other listeners into a cognitive dissonance: “If you respected this man enough to have done all of this for him, even after he trampled on you and lied to you, then why are you turning on him now?” The image of the candidate’s doormat is simply inconsistent with the image of the candidate’s accuser. And if there isn’t a ready motive available to explain that transition, then other motives (personal gain, attention, self-preservation…) will fill in the void. 

The narrative told in both Young’s book and the prosecutor’s direct examination is one of a loss of faith: Young idolized the politician, saw him as a charismatic John F. Kennedy figure, and desperately believed that he would be the president. Then as Edwards and those surrounding him exploited that faith and piled on humiliation upon humiliation – ending with the crowning insult of the induced claim to be the “baby daddy” to Edwards’ mistress – faith turned to doubt and idealism turned to self-interest. Young’s turn is caused by Edwards’ own betrayal and fall from grace. 

Bolster the Apparently Disloyal Witness

The important factor in the Andrew Young story is that, whether successful or not, there is a story that explains and reframes this disloyalty. That is an important calculation for any witness who could be viewed as breaking faith with a party or group. I’ll end with three recommendations: 

1. Add “Loyalty” To Your Credibility Calculations. We are used to thinking about the common factors when assessing a witness’s credibility: What do they stand to gain? How well do they communicate? How competent are they to relate the substance of their testimony? Before those concerns, however, is the basic element of credibility, which is character: What kind of person are they? As the philosopher George P. Fletcher notes, “Some of the strongest moral epithets in the English language are reserved for the weak who cannot meet the threshold of loyalty: They commit adultery, betrayal, treason.” We use words like “snitch,” “rat,” or “squeal” to describe disloyal testimony. It isn’t always a net negative, but it is always a consideration. 

2. Identify a Transcendent Loyalty. Rather than a matter of absent loyalty, it is better to see it as a revised or retargeted loyalty. Jurors might ask the question, “If the witness is disloyal to the target of his testimony, then what is he loyal to?” A gang member, for example, may have a loyalty to his mates, but may have a stronger loyalty to the idea of not killing civilians outside of the gangs. The same notion of a higher loyalty applies in other contexts as well. A whistle-blower, for example, is loyal to the company, but owes a greater loyalty to the customer, or the environment, or the rule of law. 

3. Run a Witness Credibility Test. A good way to discover and fix the credibility problems a witness may have is to run a test. When clients think of a mock trial or a focus group, they often think of testing the entire case, or at least the core of the case. However, the true unknown is often a lot more specific than that, and it frequently comes down to a witness: Will jurors believe her or not? In a case like that, a streamlined and economical research project just centers on that question. Give the mock jurors a brief overview of the case, and then give them an extended taste of the witness’s testimony, focusing most on the trouble spots. You’ll get good feedback on whether the witness is believable or not, and more importantly, on the factors and themes that serve to increase or decrease that believability. 

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Other Posts on Witness Credibility: 

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Michael L. Rich. 2010. “Lessons of Disloyalty in the World of Criminal Informants” The Selected Works of Michael L Rich. Available at: http://works.bepress.com/michael_rich/1

Photo Credit: Wikispaces, Judas Iscariot. 

October 10, 2011

With Computers and Witnesses, Expect Memory Errors

By Dr. Ken Broda-Bahm:

Computer RAM Chips 

My computer and I are currently fighting.  In my Dell laptop's fragile state, even the simplest actions can result in a freeze, or one of those inscrutable Microsoft messages, like "the instruction at 0x00630522 referenced memory at 0x04d92670 and the memory could not be 'read'"(as if that information helps the typical user:  “Oh, that sector…I’ll get right on that”).  In the case of my computer, it may well be that the sheer level of software, security, and virtual networking infrastructure is outstripping the available memory.  In litigation, memory problems plague the witness as well, and in that context, it may also be that the sheer level of psychological, legal, and communication demands end up outstripping our limits.

New research on popular beliefs about memory (Chabris and Simons, 2011) sheds some light on the problem.  According to the first large scale national survey on intuitive beliefs about memory, we tend to see memory as more objective, more accurate, and more durable that it actually is.  While these misperceptions undoubtedly influence jurors and other fact-finders, in this post I want to look at the implications of faulty memory beliefs on that pillar of the trial:  the fact witness.

The Study

Daniel Simons and Christopher Chabris (2011) conducted a telephone survey with 1,500 respondents focusing on agreement or disagreement with a number of specific beliefs about the way memory works.  What they found is that substantial portions of the population, majorities in many cases, have beliefs about memory that are demonstrably false.  For example:  

  • Approximately two-thirds of respondents feel that memory is like a video camera that precisely retains information for later review (a view that conflicts with the partial, reconstructive, and highly selective nature of memory).
  • Nearly half believe that once memories are recorded, they do not change (a view that conflicts with the known decay and restructuring of memories over time).
  • Most troubling, forty percent believe that the testimony of a single confident eye-witness should be enough to convict someone of a crime (a view that conflicts with evidence referenced by Simons and Chabris that even confident eye-witnesses are wrong about 30 percent of the time). 

In a Science Daily release on the study, author Daniel Simons says,  "People tend to place greater faith in the accuracy, completeness and vividness of their memories than they probably should."  Chistopher Chabris adds, “The fallibility of memory is well established in the scientific literature, but mistaken intuitions about memory persist."

While I’ve probably already spoiled some of the answers for you, you can take a version of the survey yourself here.

The Implications

The prevalence of these beliefs about memory has direct effects on the ability of a fact witness to present clear, consistent, and effective testimony.  The witness is trying to balance several things:  an awareness of law and opposing counsel’s strategy, a fair amount of stress that accompanies testimony, and for most, a difficulty in getting their minds around their memories.  Particularly in the case of large-scale civil litigation, the facts that the witness is addressing are generally several years old. The standard advice from attorneys is “if you don’t remember, say you don’t remember.”  That is good advice, without a doubt, but at the same time, it isn’t that simple.  The fact witness can often think they remember much more than they actually do.  Conversely, fact witnesses can believe they have no recollection, when further questioning shows that they do remember some things.   Or worse, they can simply remember it differently from other known facts. 

Drawing from my continuing adventures with computer memory, let me suggest three solutions for your work with fact witnesses.

1.  Ask the Help Desk.  For the witness, the “help desk,” is their attorney, perhaps a consultant, and perhaps a sounding board (co-counsel, associates, paralegals).  Part of what this group should do with the witness is communicate frankly about the limits of memory.  In that conversation, the witness should learn that their memory isn’t supposed to be perfect, that partial memories can be fine as long as they are consistent, and that retrospective thought can trick us into believing that memory is more clear than it actually is.  Ultimately, the witness should understand that the team is not just one of the nuisances of the legal process, but is instead there to help the witness present as comfortably and effectively as possible.

2.  Reboot in Safe Mode.  For the witness, “safe mode” is the practice session with the attorney and any consultant and sounding board.  It is in that mode that the witness should be able to explore in discussion what is remembered and to what degree.  Testimony, whether for deposition or for trial, should be practiced and not just discussed.  In the context of that practice, attorneys need to resist the urge to tell the witness what the case needs before hearing what the witness remembers and believes.  Doing otherwise will result in a witness who is more confused and less confident.  In “safe mode,” take the opportunity to hear the witness out, completely:  what they recall and believe.  Only when the full story is out can you help the witness address the gaps and decide what memories are clear and helpful enough to make it into testimony. 

3.  Defragment the Drive.  Because obsessing over past events can dredge up fragments of memory, and can also develop into perceptions that carry more confidence but less accuracy, it is critical at an early moment to partition:  There is what you do remember, what you kind of remember, and what you don't remember.  The earlier witnesses are able to create a clear separation into those three sectors, the less they'll fall prone to a creeping distortion of thoughts on past events.  This a reason why, for example, doctors named in a suit shouldn't start reading more research on the treatment at issue, because they'll inevitably start confusing what they knew at the time with what they know now. 

Of course, I’ve tried all of that with my beleaguered laptop, to no avail.  In fact, I think this constellation of problems might be Steve Jobs whispering from the Other Side:  “Get a Mac.”

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Related Posts:

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Photo Credit:  yellowcloud, Flickr Creative Commons

January 13, 2011

Help Jurors Detect (or Protect) Holes in Expert Analysis

Courtney Love / Hole

by: Dr. Kevin Boully

Boully_Kevin_88_120

Infamous rock singer Courtney Love is in trouble again.  Unless you’re her lawyer (or one of her forgiving fans)1, you are probably wondering what Love’s troubles have to do with your persuasive advocacy.   Fair question.  The Hole lead singer’s 2009 Twitter tirade against fashion designer Dawn Simorangkir made her a defendant in a defamation lawsuit that may be headed for trial in early February.2  Most importantly, Ms. Simorangkir has reportedly retained a social media “expert” to testify at trial about the damaging consequences of Ms. Love’s tweets to 40,000 plus followers.  Simorangkir will presumably rely on this expert to support a claim of punitive damages against Love.

So, we got to thinking:  what do jurors have to say about the believability of expert witnesses?

Continue reading

March 3, 2010

Shiny Loafers or Muddy Boots? Find a Witness With Boots on the Ground

by: Dr. Kevin Boully


Boully_Kevin_88_120“I mean honestly, I think that some of the most convincing witnesses were the ones that were actually there.”
  [Male juror in his mid-20’s]

 

Many commercial litigators assume an upper-level manager’s ability to handle sticky questions, describe company policies and profess company values should be useful to jurors’ evaluation of the company and the behavior at issue.  Probably the most important witness, right?  I mean, these manager-types are high achievers, decisive managers, and confident communicators – a perfect fit for the role of company rep and star witness.  They’ll take the stand early on, deliver the key messages with a sparkly grin, and slam the door on your opponent’s case.  Right?  Make these assumptions at your client’s (and your own) peril.  Continue reading

January 6, 2010

Just the Instructions, and Nothing But the Instructions: Increase the Salience of Jury Instructions

 

by: Dr. Shelley Spiecker

 

Spiecker_88_120

Evidence shows that false documents were notarized by employees and submitted to a state regulatory agency.  Evidence also shows that record-keeping was inaccurate; nevertheless, these matters cannot be addressed due to the parameters in the jury instructions. (Female, 55 year-old)

 

This quote, spoken by a juror after serving in a two month oil and gas production trial, typifies feedback I am receiving from jurors in a wide array of different cases in venues across the country.  While jurors are troubled by evidence they see at trial, and possibly even want to find against a defendant, they are adhering to the confines of jury instructions like never before. Continue reading

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