For years, I’ve successfully avoided Facetime calls and most video conferences. However, around 9 weeks, 2 days, 13 hours, and 42 minutes ago, that all changed. Not only did all of my work transition to video conferences, but so did my communication with my family and friends. Houseparty and Zoom are my new normal and I have to say, it’s not all bad! Yes, there are all the headaches we’ve known about for years: everyone talking over each other, followed by silence as everyone stops to let others continue; the frozen feed followed by everyone having to repeat what was just said; surprise video “guests”; etc. Through it all, though, people have adapted, and their video “skills” have improved. We’ve also learned that there are some things that do not necessarily need to be conducted “in person.” Just like all of the attorneys out there, our firm is also figuring out what can and cannot be done via videoconference. My colleague Tom wrote about one aspect of this in his blog, “How Does the COVID Pandemic Impact Mock Trials and Focus Groups?”
One of the most commonly-cited statistics in communication studies is that verbal communication (i.e. the words that are actually said) constitutes only 7% of how the credibility of a message is determined. 38% is the vocal quality of the message (i.e. tone, etc.), and 55% is the nonverbal component. Some scholars have disputed how these numbers have been interpreted, but research has shown over and over again that how something is said is more important than what is actually said. Setting the research aside, anyone who has ever been in a serious relationship has lived this reality.
For this reason, one of the most important parts of a witness’s testimony is the “eyeball test.” In other words, does he or she look and sound like the kind of person he or she is being portrayed as? One of the most obvious examples of the eyeball test is in medical malpractice cases. So much of jurors’ opinions in medical malpractice cases boil down to them looking at the doctor as he or she testifies and asking themselves if he or she seems like the kind of doctor they would want treating them. If the answer is yes, the jurors will often explain away bad facts. If the answer is no, those bad facts become more salient. Reiterating this phenomenon, a 2018 national survey conducted by Sound Jury Consulting found that 59% of respondents believe they can tell if someone is a good doctor just by meeting him or her and having a conversation. Continue reading →
On a recent episode of “All In,” Chris Hayes was discussing one possible approach the Trump team could take in regards to the Stormy Daniels mess. Similar to the approach John Edwards took in his lawsuit involving some of the same issues, the strategy is essentially go for broke by embracing and re-framing the “bad” behavior – “Sure I did it, but it wasn’t illegal.”
For Edwards, he stated it this way: “There’s no question that I’ve done wrong, and I take full responsibility for having done wrong. I will regret for the rest of my life the pain and harm that I’ve caused to others. But I did not break the law, and I never ever thought I was breaking the law.” 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.
Defense witnesses such as 30(b)(6) witnesses and key employees make or break the case. These witnesses serve a symbolic role that goes above and beyond the implications of the actual words that they say. Instead, they tell the jurors what kind of organization the defendant is. They serve as ambassadors for the defendant. If they are sloppy, disorganized, or come across as uncaring, the defendant will be perceived by the jury as sloppy, disorganized, or uncaring. In fact, the two most commonly discussed plaintiff strategies (Reptile and the referendum strategy) thrive on poor performances by key defense witnesses. The result is a frustrated jury that feels the need to “send a message” to the defendant that it needs to change the way it does business.
Fortunately, the solution is pretty simple: a witness prep session. Defense attorneys often have what they call “prep meetings” with their witnesses, but there are five common shortcomings of these sessions that undermine their effectiveness. Continue reading →
When you were growing up did your mom or dad ever say that to you? Do you say it to your kids? My son is a pro at turning a relatively innocuous response into a mordant-laden one simply through his tone. The answer “We’re going to the movies,” reads innocent enough until tone is added by the 17-year-old who is completely taken aback that his mom would dare ask where he and his friends are going. He’s equally successful at adding a charming tone to any question asking for money, the car, or new Nikes.
For a wonderful example of the power of tone, look no further that this YouTube video of a 10-month old baby crying as he listens to his mom sing a moving and melancholic song. This sweet little baby isn’t responding to the words of the song (also moving); he’s responding to the tone — the way the words sound. He’s simply overtaken by the way she is singing, not what she is singing. Continue reading →
After receiving several requests from clients, we recently put together this 7-minute video for attorneys to share with key witnesses in their case before their depositions. It is always preferable for attorneys to meet with their key witnesses in advance of the depositions to spend time practicing the testimony. This helps familiarize witnesses with the common pitfalls of a deposition, can increase their comfort level, and give them an opportunity to fail in a mock setting so that they can succeed in the actual deposition. However, these practice sessions are not always possible. Consequently, we put this video together as a free tool for attorneys to send to their witnesses.
The goal of the video is to provide witnesses with the essentials for performing well in a deposition. While the video is certainly not comprehensive, the core principles and rules that are discussed will help witnesses navigate most of the hurdles they will face.
There is a popular 3M study that is often used to support the argument that attorneys should utilize more graphics in trial. The study found that audience members retained as little as 10% of the information three days later if the presentation was oral only; however, when presented the same information through both oral and visual presentation, the retention rate jumped to 65%. While this study is most often used to support the argument that presentations need a visual component, its implications can be applied to other areas of litigation. One that comes to mind is witness preparation for deposition. Many attorneys meet with witnesses a few days in advance of their depositions to review the relevant case documents and tell the witness what to do. In some instances, a jury consultant will participate to help the witness overcome barriers to effective communication.
One of the most common problems I have observed is information overload. To be more specific, many attorneys spend time in these sessions providing the witness with extensive tips on how to deal with different issues in the case, strategies that might be used by opposing counsel, and a variety of other random thoughts. This may appear reasonable since the attorney is simply trying to get the witness up-to-date and prepare him or her for all of the nuances of the case that may be addressed in the deposition. Continue reading →