Tag Archives: testimony

The Power of Embracing Bad Facts

By Jill D. Schmid, Ph.D.

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

The Value of Repetitive Question Structures in Direct and Cross Examination


By Thomas M. O’Toole, Ph.D.

I have previously written about how important repetition is to persuasion. I discussed how repetition increases retention, familiarity, and believability. In this post, I want to talk about one practical way of building repetition into your case presentation at trial. Continue reading

Does your witness script match your witness’s communication style?


By Jill D. Schmid, Ph.D.

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

Deposition Performance Case Study: Marcus Lemonis

By Thomas M. O’Toole, Ph.D.

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.

For background, this deposition appears to be related to a case in which a woman alleges that Lemonis and company conspired to unfairly push her out of participating in and sponsoring an equestrian competition in Florida.
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Testimony and the Right Place for Righteous Indignation

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By Jill D. Schmid, Ph.D.

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.
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5 Ways Defense Attorneys Fail to Adequately Prepare Their Key Witnesses

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By Thomas M. O’Toole, Ph.D.

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

The Sniper Defense 001 – The Podcast Playbook for Defense Attorneys

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.

Jurors Don’t Let Facts Get In Their Way

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By Jill D. Schmid, Ph.D.

I’m a relatively new user of Facebook – turns out my protest against it wasn’t working as there are now over 1.25 billion users. I finally gave in and joined as I was told that people use it to share pictures of their kids, dogs, and vacations. While that is somewhat true, I’ve also found that people use it to “share” and “like” their political, religious, and moral views about every subject under the sun. Now, don’t get me wrong, I have no problem sharing my opinion, but typically I like to do it in a face-to-face setting where we can engage in a discussion of the issue and where people can tell me I’m full of “it” right to my face – no hiding behind a computer screen.

My dislike for Facebook has become more intense recently. I’ve learned in the past couple of months that I’m going to have to take a hiatus from it until the political season is over. I was thinking about the posts and the feedback to those posts when an attorney friend posted the picture above.

This got me thinking about what I do – and how social media and the “sharing” of opinion as if it’s fact influences how people pay attention to, process, and remember information presented to them during trial. Continue reading

“Don’t Take That Tone With Me!” Working with Witnesses to Improve Performance

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By Jill D. Schmid, Ph.D.

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.
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