Persuasive Litigator

Witnesses, Don't Get Too Comfortable

By Dr. Ken Broda-Bahm: 

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. 

According to some new research (Jamieson, Nock & Mendes, 2013), the answer may lie in embracing the stress. Instead of chasing the elusive goal of comfort in the witness chair, it is better, according to these researchers, to acknowledge the inherent stress of being a witness and work to reframe the fact of the heightened physiological state, sometimes called the "fight or flight response," as something more positive. Speakers who did this in contexts where they knew they would be challenged performed much better, even as all physical signs of stress remained constant. This post takes a look at the study and draws out a few suggestions for parties, experts and all witnesses to focus on performance instead of comfort. 

Defuse Your Angry Witness

By Dr. Ken Broda-Bahm: 

If you've been following the country's current gun control debate, then you may know about the stormy encounter between CNN commentator Piers Morgan and radio host Alex Jones, including the red-faced and shouted charge from Jones, "1776 will commence again if you try to take our firearms." All caps would not be sufficient to convey the tone here (watch it if you haven't already), and saying that Jones qualifies as an angry witness is certainly an understatement. While that specific encounter could be viewed as a kind of theater, a version of the same phenomenon -- anger taking the place of calm and effective communication -- can play out in your deposition or in trial. While attorneys tend to focus a little more on good communication when it comes to trial testimony, the effects of anger can be more likely to play out in deposition, both because it is closer in time to the events prompting the litigation and because it seems like more of a private setting. But the harms of either a Jones-style outburst or Peirs' own seething and silent response can be just as damaging in a deposition setting, if not more so. 

Addressing anger in your witness is a task that calls for both an appreciation of psychology, as well as an awareness of the practical needs of good legal communication. The response is to address that anger through conscious and strategic preparation sessions. You won't always be able to make the witness happy, but it is your responsibility to try to find ways to prevent your witness from harming the case. This post takes a look at some of the current advice and research focusing on witness anger, and proposes a three-step remediation model for defusing that anger.  

Negotiate, Mediate (and Testify) Eye to Eye

By Dr. Ken Broda-Bahm: 

Have you ever seen an argument get somewhat bitter or personal in an online forum or via electronic communication? That is a little like asking, "have you ever visited an online forum or used electronic communication?" When we're safe behind keyboards, or to a lesser extent, on the telephone, arguments can escalate more than they would in person. For those who study communication, the theory has been that this heightened tendency toward becoming nastier and more aggressive is due to a subjective feeling of anonymity or invisibility when one is arguing without in-person communication. But based on a recent Israeli study, the cause may be something simpler than that: a lack of eye contact. 

Look your audience in the eye: It is one of those staples of public speaking advice, and everyone should know it by now. But if you visit any courtroom and look at how many witnesses are not just glancing but maintaining eye contact with a jury or a judge, then you'll see that this advice is more popular than it is practiced. And if we take a step back in the process and look at the critical discussions that will determine whether a case settles early, late, or not at all, then that opportunity to literally see eye to eye is often displaced by emails, voice mail messages, or letters. The research suggests that we would be more likely to find a favorable and empathetic audience if we seize on in-person meetings whenever possible. This post will take a look at the new study, and discuss how its results should influence the way we talk about cases prior to trial, as well as the way we testify at trial.  

Don't Mistake the Witness for a Bucket of Facts

By Dr. Ken Broda-Bahm 

The law treats factual evidence as a repository possessed by the witness and elicited through testimony. Like a bucket, filled, in the case of your witnesses at least, with the sweet clear water of truth, you just dip in a ladle and out comes the descriptions, the observations, the facts. We acknowledge that the bucket isn't perfect: It holds only so much, and is prone to leaking. But we still treat testimony as the act of information retrieval, not fully accounting for the possibility that the bucket is at all times fundamentally transforming its contents. However, to a degree even greater than researchers expected, a new study (Bridge & Paller, 2012), confirms that transformation during recall is the norm, not the exception. That is, we rewrite every time we remember. In recalling, we reconstruct by mixing the original memories with our recollection of the previous times we've thought about and shared the same information. 

So memory is creative rather than descriptive, and dynamic rather than static. That goes to the heart of a trial court's reliance on testimony. Eyewitnesses in criminal cases get the most attention (which makes sense based on what is at stake), but the problem bears on civil trials as well, because it influences how we should treat all testimony that depends on recollection...which is to say, all fact testimony. Even the civil litigation witness may be creating as much as he is remembering, and it isn't a conscious attempt to mislead. This post looks at the new study and unpacks a few ways that trial lawyers can adapt to the realities of reconstructive memory.

Subvert Stereotypes: Free the Attorney, the Expert, and the Juror

By Dr. Ken Broda-Bahm: 

Think beyond the stereotypes. That is what you're used to hearing (and I'm used to saying) about jury selection. But that same need to subvert the stereotypes applies not just to picking panelists, but to persuading as an attorney or an expert witness as well. In each of these situations, some very durable preconceptions are apt to stand between an advocate and a fair hearing. Stereotypes are often an obstacle to persuasion. 

It turns out that these barriers can be overcome, and overcoming them can also carry some unexpected benefits. According to a forthcoming study (Goclowska & Crisp, 2012) in the journal Thinking Skills and Creativity, when we're able to set aside stereotypes, we're also more likely to think with greater flexibility, originality, and creativity. Encouraging an audience to set aside a stereotype can lead to them thinking beyond the obvious and the routine of established patterns, and that creativity can be key to getting them to accept an initially difficult message. In this post, I'll take a look at this new study and focus on the broader message of getting past stereotypes for attorneys, expert witnesses, and jurors.