I’m sure you’ve written dozens perhaps hundreds. For each, you’ve painstakingly chosen every word, and gone over it with a fine-tooth comb. It’s a work of art. Therefore, come time to perform this masterpiece you’re shocked when it doesn’t go off as planned. What happened? Your witness happened.
Witness scripts or outlines are a staple of any litigator’s trial playbook, as they should be for a variety of reasons. However, there are several critical mistakes or shortcuts that are often made that invite disaster on the witness stand, the biggest of which is that the attorney did not consider the witness’s particularities. Simply talking with your witness is not sufficient to uncover those particularities; instead, the best way to assess them is through a mock direct examination. Here are three critical aspects of communication that you can glean from the mock examination and then address through the construction and editing of your witness examination script. Continue reading →
I am a fan of the television show, The Profit . It’s entertaining and a wonderful resource for small businesses. Naturally, I was curious when I stumbled across deposition video of the show host, Marcus Lemonis, on YouTube.
Before you read any further, watch the above 1 minute and 41 second video, which will provide incredible insights into your trial presentation strategy as discussed below.
Did you pass or fail? As they tell you in the video, almost half of all of the people who watch this video (and have not seen it before) fail the test by not seeing the gorilla. Even more interesting, we learn that even those who have seen this kind of experiment before (and expect something odd to happen) failed to notice the second change, which was the color of the curtain in the background.
Your first reaction may have been that this is an interesting little party trick kind of experiment that you can forward along to your friends, but upon further glance, this experiment provides critical insights into what happens at trial as jurors listen to your case presentation. Describing this experiment, Nobel Prize winning psychologist Daniel Kahneman noted that “intense focusing on a task can make people effectively blind, even to stimuli that normally attract attention.” Continue reading →
After a brief hiatus, The Sniper Defense podcast is back with an all new episode. In this episode, Thomas M. O’Toole, Ph.D. discusses the common personality and interaction types that emerge during jury deliberations and how each can impact the final verdict.
Good news! Now, you don’t need to re-read your emails looking for the subtle ways you might be undermining your authority – as the saying goes, “There’s an app for that!” Called “Just Not Sorry,” the app highlights the language choices that I wrote about in an earlier blog (e.g., hedges like “I think,” intensifiers like “really,” and other qualifiers like, “just” or “actually”).
Recently, author Christina Cauterucci interviewed Tami Reiss the CEO of Cyrus Innovation, a software development consulting firm that specializes in women-led companies and tech teams, and part of the team that developed the “Just Not Sorry.” She and others referenced in the article reinforce that these language choices are not only unnecessary filler, but can also undermine the sender’s authority. As I wrote about, these language choices are so ingrained in us (particularly women), that without something or someone pointing them out, we are left unaware of the unintended consequences – hence, the app. Continue reading →
A few weeks ago I was listening to a judge give his rulings on a number of pre-trial motions. With each ruling, he began by saying, “I’m inclined to find …” The first time, I didn’t really think anything of it, but a few hours and dozens of motions later, it was clear that this judge could not make a simple and strong declarative statement. While I typically do not look for opportunities to “take on” a judge, this particular example of a powerless speaking style deserves some attention namely because of the position and also because the judge was a man.
For years, I’ve studied, lectured, and written on gender communication. The “powerful – powerless” communication continuum is part of that work and is used to describe the difference between stereotypical male vs. female communication styles. The “female” end of the continuum is often associated with “powerless” speech – speech that includes hedges and qualifiers: “perhaps,” “maybe,” “I think,” “kind of,” or “I guess”; speech that includes intensifiers: “so,” “really,” and “very”; speech that includes hesitations: “um” and “uh”; and speech that includes disclaimers: “I’m not sure, but…” or “I’m not an expert, but…” Reading these, it should be obvious that the use of these types of phrases or words weaken the statements being made. Continue reading →
If you’re a woman, there’s probably been at least one time in your life when someone (my money says it was a man) has told you that you “need to relax.” I’ve been told this a few times and, each time, the person pretty quickly realized it wasn’t the smartest move. Recalling these events, two thoughts come to mind: 1) I can honestly report that I wasn’t out of control, yelling, or being irrational. Instead, I was simply strongly asserting an argument about an issue – usually something political. And, 2) I’ve never witnessed or participated in a “heated” discussion and heard someone tell a man who is aggressively arguing his point that he should “relax.”
I was reminded of all of this as I read “One Angry Woman: Anger Expression Increases Influence for Men, but Decreases Influence for Women, During Group Deliberation.” The research, conducted at Arizona State University and the University of Illinois at Chicago, is a fascinating look into how a man’s versus a woman’s “anger” is perceived and then utilized by others when making decisions. While years of research (and real life experiences) show that women are often subjected to harsh criticism for being “too emotional” and are often labeled as “Bitches” (and worse) when behaving in similar ways to men (i.e., being aggressive or dominant in work situations), this particular study goes one step further and explores how aggressively advancing one’s position is undermined by simply being a woman. Continue reading →
Most attorneys understand the obvious and immediate downside to using big words at trial. A key component of effective persuasion is comprehension. Audiences need to understand what you are saying. This drives action. People act on things that are easy to understand and re-articulate. Consider the results of one study where researchers found that consumers are more likely to buy products that describe features with simple language than they are products that describe features using complex language.
In another study, researchers found that the fluency (ease with which it is pronounced) of a company name impacts whether or not people are willing to buy stock in that company. The authors note “fluently named stocks robustly outperformed stocks with disfluent names.” Continue reading →
Let me first say I’m thrilled to be joining my former colleague, Tom, at Sound Jury Consulting. Tom and I worked together for over eight years. We share the same fundamental beliefs about our profession and how we can work with attorneys and their clients in bringing their cases to the most favorable conclusions possible. I look forward to meeting those already working with Tom, and to working with many others who are looking for a trial consulting team and firm.
Since this is could be your introduction to me, I thought I’d use my first blog to summarize a critical takeaway and some observations I’ve garnered from being a trial consultant for over a decade and a communication professor for nearly the same amount of time. What I’ve learned is that this is not rocket science; I firmly believe many of the tried and true effective communication principles that have been with us for thousands of years still apply. People might want a new fancy name or brain research to prove it’s true, but all of that doesn’t diminish the fact that people pay attention to, process, understand, remember, and apply messages that: 1) Fit with their understanding of the way the world works (i.e., their world view), and 2) Hang together (they simply make sense when taken as a whole). Continue reading →
Happy New Year to all of the readers out there! I hope 2015 brings everyone the best in their litigation practices. One of my New Year’s resolutions is to provide more frequent updates to the blog in an effort to continue providing reliable and practical advice for implementing strategy over the course of a lawsuit.
One critical issue that rarely receives the attention it deserves is the dynamic of jury deliberations. Consideration of the dynamic should significantly influence decisions about strategy development, yet this rarely occurs. I think sometimes the problem is that attorneys tend to focus on persuasion as their objective when it comes to the jury. While this is certainly an important part of the process, it is still only one part of the process. Persuaded jurors do not necessarily result in favorable verdicts. As ridiculous as this may sound, it is true and I have seen it happen frequently in the hundreds of mock juries I have observed over the years. While unanimous verdicts happen, they are not necessarily common. There is usually some sort of division amongst the jurors when deliberations begin (even when they ultimately reach an unanimous verdict). Continue reading →