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 →
One of the greatest difficulties in any trial is coping with the uncertainty of the outcome. There is a sense (or at least an illusion) of control in just about everything leading up to the moment attorneys must present the issues to the trier-of-fact. And then there is uncertainty: How will the judge perceive the issues? How will the jurors perceive the issues?
This uncertainty, based on my experience, seems particularly vexing for attorneys. Attorneys seem built to control and this makes sense. Anyone who is passionate about strategy and argument is naturally going to have a strong need for control. In this respect, this need for control is healthy and positive. It drives attorneys to work hard and prepare the best case possible. However, there is also a downside to this need for control: it often causes attorneys to look too hard for any cues from the judge or jury about how he/she/they might feel about the case. Continue reading →