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Archive for the ‘Witness Preparation’ Category
Maybe you better sweat the small stuff…
You might think that giving that witness a fashion update, helping them to understand their role in the trial story, and working with them to remove distracting non-verbal behaviors would be enough to go to trial. Not so fast! There is so much more to consider. It seems jurors may intuit much from small (or not so small) witness features that are really not salient to testimony at all. So contrary to the best selling books out there—you really do need to sweat the small stuff. Like what small stuff, you ask? Read on…
Facial scars:
If the opposing witness has a facial scar and yours does not—you might think that would bode well for your side. After all, facial scars are sinister. Or maybe not. Turns out that men with facial scars have more one-night stands and that (some?) women see facial scars as indicative of bravery and health. We know character matters to jurors. They may end up thinking the scarred witness is more attractive—not to mention both healthy and brave—than your witness. Or, perhaps, creepy.
Videography angles and focus:
It’s pretty obvious that you want your witness well-lit, shot from a flattering angle and (please) no iced coffee or soda—jurors often think this means the witness is not taking the deposition seriously. We have a long list of “do’s and don’ts” for witnesses, but overall, depositions are not the time for a refreshing beverage.
New research shows us that when your client has confessed and then retracted that confession—a confession video only trained on the defendant is seen as more convincing/persuasive than one trained on both the defendant and the detective or the detective/interrogator alone. And when there is much detail in the confession—it’s even more persuasive when the camera is trained on the defendant alone. (This is really an interesting piece of research and we’ll blog more on this soon.)
Foreign accents:
Many of us think that if someone speaks English (even accented English) it’s better to have them testify in English rather than in their native language with a translator. That may not be true. New research shows that when someone speaks with an accent—many people believe they are not being truthful. And the heavier the accent, the more we assess them as being not truthful. When we have trouble understanding someone, we assume they are less than truthful.
While you can make jurors aware of how videography and accents can bias their judgments—it’s likely a bit harder to say “don’t like their witness more because he has facial scars”. The take-away here is that everything matters: the big stuff and yes, even the small stuff. Sweat it all.
‘Lawyerese’ may work well in journals but not in the courtroom!
You spend years and years in school learning how to communicate and write to get good grades. Then you get out into the real world and discover what worked well in the ivory tower of higher education can really mess you up in the courtroom! And in case you have not yet discovered that—here’s a head’s up!
Researchers tell us witnesses who had been taught about how cross-examination would proceed performed much better on the stand than did witnesses left to manage without instruction. Well, yeah. That makes sense. But here’s where it gets interesting. The issue was not in the process (as in anxiety over performing) but in the language of cross-examination.
‘Lawyerese’ which the authors define as “complex questions, containing multiple parts, double-negatives and advanced vocabulary” throws off the brain’s ability to process information correctly. So, witnesses who had been trained in ‘lawyerese’ were more likely to respond appropriately and less likely to make errors in testimony. Conversely, witnesses who were not taught ‘lawyerese’ “were more likely to work harder to answer the questions accurately and were more likely to become frustrated and nervous in court”. In other words, they benefited more from practicing comprehending questions than they did in rehearsing their answers.
It doesn’t take advanced education to think about which witness would seem more credible to a jury. It’s all part of a witness preparation strategy. You want your witnesses to be prepared for their testimony and that means more than simply running through your plans for direct examination with them. Preparing witnesses should not be an afterthought. Scroll down to the bottom of this page on our website to register to see the articles we’ve written on witness preparation over the years. Begin the process of ‘un-learning’ what got you A’s in the classroom and open the door to good grades for your jurors.
Bummer! Our brains do decline with age…but there is good news
As I vainly attempted to recall what it was I came downstairs intent upon retrieving last week, I fretted over the decline of my middle-aged brain. It was of little comfort to me that middle age now begins at 35 nor that new research shows the much-hyped brain training games don’t really work. I knew I needed something from downstairs but couldn’t recall what it was. And then, Terry Gross perked me right up.
I recalled I had heard Terry’s NPR show Fresh Air on which she interviewed Barbara Strauch about her new book The Secret Life of the Grown-Up Brain. Of course, I couldn’t remember the name of the book but I remembered the phrase “middle-aged brain” and Google walked along with Terry to my rescue. As I was reviewing the webpage and refreshing my memory it occurred to me that I wanted a cup of coffee. Sagely, this time I carried my cup with me to ensure I would not once again arrive in the kitchen with no clue as to what I wanted.
My favorite piece of Terry’s interview with Barbara Strauch was this quote about how the function of our middle-aged brains is actually improved over our 20-something selves:
“We are better at getting the gist of arguments,” she says. “We are better at recognizing categories. And we’re much better at sizing up situations. We’re better at things like making financial decisions, which reaches a peak in our 60s. Social expertise — in other words, judging whether someone’s a crook or not a crook, improves and peaks in middle age.”
In other words, we’ve been trained to think that aging equals decline — but that’s just not true.
“On the contrary,” Strauch says. In some of the categories that matter most, “our brains are functioning probably at their best in our new modern middle age.”
In truth then, there are many reasons for us to select the ‘middle-aged’ juror if we want good thinkers as triers of our facts. The point is that memory glitches are common as we ‘mature’ and you want to plan for these short-circuits in your case presentation.
- Well executed graphics can be a wonderful device for not only condensing information for jurors but also for tweaking memory circuits to remind us of testimony/evidence when we see the graphic.
- Case themes that are repeated (but not too often) can also be good memory joggers and aid in case conceptualization/narrative that supports your case. We have a number of blog posts that talk about the importance of themes.
- Craft a concise case presentation that details your case narrative but does not overwhelm jurors with extraneous details that distract them from the essential story.
- Prepare witnesses to relate an understandable and compelling story that connects to your case themes and supports your narrative.
In truth, these are simply good preparations for trial for any case. It just so happens they are tailored to the middle-aged brain (as well as other brains). A well-crafted story holds juror attention, sticks in their minds, and allows them to reinforce your case themes in the deliberation room. So if you (like me) are over 35 and worry about your own aging brain, instead celebrate its ability to streamline and summarize more effectively. And use that to sharpen and hone your case presentation. Jurors of all ages will appreciate it.
You can stop smoking and lose weight without much effort at all!
Science should make life easier for all of us. And this time, maybe it has (or maybe not). Neuroskeptic has a post on how to stop smoking that they distill down to two words of advice: “Don’t start”. They go on to discuss the reality that most smokers who quit (75%) do so without assistive aids or programs. They simply quit on their own, without assistance. And that’s hard. Smokers who quit have a 75% relapse rate (which is the same rate as recovering alcoholics and heroin addicts).
Another report offers a bit more practical advice: think abstractly. PsyBlog describes recent research by Fujita & Han (2009) who found that if participants engaged in ‘why’ (abstract thinking) to do something rather than ‘how’ (concrete thinking) to do something (like maintain relationships or lose weight), they were more successful in resisting temptation.
The application to litigation advocacy is simple, both in terms of what you tell yourself and what you tell others:
- Jurors don’t want to rush through deliberations to avoid rush hour traffic. They want to carefully assess the evidence to ensure justice is done.
- You don’t want to non-verbally react like a snake about to strike when opposing counsel pulls a fast one. You want to communicate a sense of capability and likeability to the jurors and so you prepare internally (in advance) to have a “there s/he goes again” non-verbal response and look quizzical and shake your head before you object. The head shake could draw a side-bar objection, but the occasional offensive foul is crucial to a win (please forgive a basketball analogy—March Madness has yet to vacate my brain).
- Expert witnesses don’t ‘want’ to impress jurors with how accomplished and smart they are in their specialty area. Instead, they need to remember the goal of their testimony: To educate with sincerity and clarity. That’s why they were asked to testify.
You can also (naturally) use this idea to lose weight or stop smoking by focusing on the goal of increased health and lifespan rather than calorie counting or how wonderful it would be to have just one cigarette. Up to you!
Apology redux: Doing it right (and doing it wrong)
Beth Foley has a nice article on apology in the current issue of The Jury Expert. She discusses how well-known people exhibit moral hypocrisy in their pseudo-apologies and uses the examples of Eliot Spitzer (bad apology) and Tiger Woods (good apology). Beth is a great trial consultant (and a generally great person) and we like her article.
We like it especially since much of what Beth says agrees with what we’ve said on our blog regarding David Letterman, Tiger Woods, and, yes, even Eliot Spitzer. We’ve written a couple of papers on this issue also: one inspired by Eliot’s misadventures is downloadable from our website: Defending the Uncivil Client and The Art of Apology (all about what makes a good apology and also available to download at our website but you have to register to get to it!)
Apology is a tricky thing. You have to do it right. And ‘right’ means sincerely and genuinely—or at least appearing sincere and genuine—but, it’s better to really mean it. On CBS’s The Good Wife, Peter (played by Chris Noth) is trying really hard to show sincerity in his requests for forgiveness but we don’t know just yet if he really is sincere or playing the preacher or maybe his wife (Julianna Margulies). This television show (which is a lot of fun to watch) painfully illustrates the disconnect we all fear between what the politician shows us and what is real. As a litigator, you need all the tools possible to help your client apologize correctly (or to repair an early failure) and to present the best possible ‘face’ to a jury and the public. Read Beth’s paper and read ours too.
You’re on trial: Is it better to be an atheist or a black radical Muslim lesbian?
You may be very surprised by the answer! We have an article in the current issue of The Jury Expert on the surprisingly intense hatred and fear Americans have toward atheists. The power of this bias is stronger than America’s bias against African Americans, Hispanics, Asians, homosexuals, and shockingly (in our post 9-11 reality) Muslims. Yes. We are more afraid of/threatened by Atheists than by Muslims. Sometimes you don’t know whether to be somehow relieved or heartsick. Alas…
We started writing this piece after reading a 2006 article finding Atheists to be the most hated minority in this country. That article only recently came to public attention but it had generated a bit of heat on the internet. It was nothing, however, to the Kanazawa pre-print from Social Psychology Quarterly that came out as we finished up our first draft. Science Daily picked it up and then a plethora of bloggers took up the trail. Razib Khan and Robin Hanson generated the most comments from readers. Even the main-stream media (in the form of Time Magazine) covered the story.
Our focus (and interest) isn’t really on whether liberal atheists are smarter than conservative believers. We are more interested in the raging emotional response Americans exhibit toward atheists and how that may affect litigation advocacy. We cover the limited research on characteristics of atheists and review the long-standing and firmly entrenched biases against atheists in this country. And we make recommendations for putting your best foot forward in the courtroom (if you have an atheist client) and in voir dire (do you want or not want an atheist on the jury). This is a universally held and powerful bias you cannot afford to ignore. Read our article here.
*The illustration on this post is from a British bus ad campaign paid for by a British atheist group. The transit company required the insertion of the word ‘probably’ before allowing the ad.
And now the second hundred…
It seems hard to believe but over the last 7 months we have published 100 blog entries. We have gone from having no blog to having readership in every state and about 75 countries.
We started the blog for a couple of reasons. We wanted people to come look at our website, and frankly to consider us when they had need for the kind of services we provide. That has worked out well. Under the old rules of ‘how to grow your business’ you advertised like crazy alluding to your ability, and kept your actual knowledge under cover. The new business universe has changed drastically, and for the better. Now the strategy is much more one of ‘We will tell you what we do and a lot of what we know—and let you decide whether it fits your needs’. To us that feels like a better model.
We wanted to participate in what we were seeing as a lively online community of smart and helpful commentators on the leading edge of knowledge regarding society and the law. Bloggers like Anne Reed, The Situationist, Mark Bennett, Victoria Pynchon, Thaddeus Hoffmeister, Stephanie West Allen, Timothy Hughes and ‘Gideon’ have distinctly different voices, but have all made terrific contributions to our knowledge by sharing their perspectives. We like sharing ideas with smart and thoughtful people. And we wanted that discussion to include you.
There is no end of potential blogs we can post—we are confronted with new research, new trial strategies, and new takes on juror decision-making virtually every day. But what makes it a blog you want to read?
It would be helpful to hear from you on what topics struck you as most useful, or readable, or entertaining, or important. If there are topics you wish we would cover or develop more fully, let us know that, too.
It has been a challenging but fun First 100. Let us know where you want the next 100 to go, and we’ll see you there.
Doug Keene and Rita Handrich
Charlie Sheen or Tiger Woods? When behavior doesn’t fit the image
The uproar following Tiger Wood’s one-vehicle accident at his home and the subsequent disclosure of multiple infidelities remains huge. The deluge of stories are in a temporary lull, but they are coming back when Tiger returns. There were a few thoughtful and even eloquent stories like this one from sports columnist Mike Wise. But the majority were pejorative, salacious, gossipy, breathless and tantalized. The gap between who we thought Tiger was and who he really turned out to be was simply too vast. A poll showing his popularity plummet from 85% to 34% in December, 2009 was seen as evidence of that public/private gap and the public feeling of being deceived by his behavior.
Charlie Sheen, on the other hand, caused hardly a ripple with news reports that his wife called 9-1-1 to report he had threatened her with a knife and that she was terrified he would kill her. While obviously we cannot know if these reports are true or not and Brooke Mueller (Sheen’s wife) is now retracting them—Charlie Sheen has been here before. His divorce from Denise Richards was fueled by reports of drug abuse and violence and their child custody dispute has been highly conflicted.
Yet while many of us seem to think Tiger Woods is despicable, we see Charlie Sheen’s alleged behavior as simply reflective of who he is—a bad boy. Tiger acknowledged his ‘transgressions’ and ‘infidelities’. Charlie’s lawyer says we shouldn’t jump to conclusions about anything. Tiger broke our hearts while we expect no better from Charlie.
It’s an instructive lesson for us about the damage done when the behavior doesn’t match the image. We blogged about David Letterman’s acknowledgement of his own ‘bad behavior’ and how he masterfully spun an amusing and almost charming tale about his fall from grace. And then he stopped talking. As more news came out about his situation, many of us cringed a bit at what we heard, but Dave wasn’t talking. And the media focus passed.
What does this have to do with litigation consulting? Simple. It is never too early to think about identity for your clients, opponents, and witnesses. If a party or key witness is risky to your case, prepare the jury for what they can expect. Control expectations by characterizing a strong opposing witness as being an expert salesperson or a veteran speaker. Have early witnesses talk about how shy and nervous your client is. By controlling expectations, you prepare the jury, and shape the way the witness is perceived.
Simple Jury Persuasion: Don’t confuse argument with persuasion
Despite what you may have seen on the used car lot, persuasion is not a hard sell. It’s important we not lose sight of the many facets of litigation advocacy. In other words, don’t confuse argument with persuasion. You may argue your case beautifully but you still need to connect with jurors, show empathy and create some emotional response.
We blogged about Aristotle’s ideas on persuasion here. Aristotle talked about three pillars of persuasion: fact, emotion and credibility. A few hundred years later, Manallack (2002) & Hosman & Siltanen (2006) write about what they think is important in persuasion. We’ll focus on just a few of their ideas here.
Manallack writes about the importance of connecting emotionally, of infusing your facts (or evidence) with emotion, of being credible and establishing a common ground with your audience. All of these ideas are compatible with (and critically important to) your courtroom presentation.
Hosman & Siltanen focus on a more specific issue: powerful versus powerless speech patterns. Powerful speech patterns, say these two researchers, are more persuasive and powerless speech patterns tend to elicit more negative thoughts on the part of the listener.
Powerless speech patterns include indirect language, excessive use of qualifiers such as ‘like’ or ‘you know’ and sentences that end with queries—“don’t you think so?” and so on. Passive language ( e.g., “It would be reasonable to… “ versus “It is reasonable to…”) is equally deflating. It is a good exercise to monitor your use of these sorts of speech patterns and to remove them as much as possible from your courtroom communication.
These writers also point out that women and minorities are more likely to have powerless speech patterns. If you are female or a minority group member, increase your self-monitoring for powerless speech patterns. If you have parties, witnesses, clients who have these speech patterns, work with them to minimize or remove the powerless habit of speaking.
Communication can be powerful and persuasive without being argumentative. A hard sell isn’t necessary but clear, direct, straight-forward and confident communication goes a long way toward your credibility and persuasiveness to others.
We don’t really know why we think what we think
PsyBlog writes that when we tell a good story about why we think what we do about others we are usually wrong. That is, when we try to describe the factors that are important to us in coming to a conclusion/decision about whether we like someone we usually identify factors that don’t actually matter at all.
In other words, when I think about why I judge a person about something—I am usually wrong.
So when mock jurors say “character doesn’t matter, it’s the facts that matter”—this is why they are wrong. They like to imagine that they are objective, and to them this means a dry assessment of the evidence.
But it is more than that, and their effort at constructing a ‘just world’ is a powerful element. It is frankly pointless to try to stop jurors from doing it—you can’t fight human nature.
The best testimony is a hybrid of important facts and a window into the character of the witness and the parties. Character matters, and if your client is woefully lacking, your challenge is to create a context for their inadequacies that mitigates the impact.
He isn’t insensitive—he is a geek.
She isn’t cruel—she is protective.
Sequence your case narrative so that good character shines through and jurors see that even though your client may have made some bad decisions, s/he is likeable and a well-intended person.
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