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’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.
The other day I was watching FBI Director Comey’s testimony to Congress regarding the FBI’s Clinton email investigation and findings. It began as a test of my mental fortitude, but I found that I enjoyed watching how Comey handled the questions and delivered his responses. In particular, I admired the way he kept his composure while still being strong and, when necessary, a bit indignant.
Comey wasn’t angry or rude. Instead, when needed, he used righteous indignation. A good example of this came when Comey was being “asked questions” by Florida Representative John Mica. Towards the end of the allotted five minutes, Comey had had enough of the insinuations and thinly veiled attacks on his investigation and conclusions. He sat up a bit straighter, talked a bit louder and clearer, and he stated, “I hope what you’ll tell the folks in the café is ‘look me in the eye and listen to what I’m about to say. I did not coordinate that with anyone. The White House. The Department of Justice. Nobody outside the FBI family had any idea what I was about to say. I say that under oath. I stand by that….’” He ends by saying, “I want to make sure I was definitive about that.” You can watch his testimony here. Continue reading →
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 →
Welcome to the Sniper Defense, the podcast playbook for defense attorneys. In this episode, jury expert Thomas M. O’Toole, Ph.D. discusses the most effective strategies for preparing key defense witnesses for their depositions.