Deliberations

What Great Basketball Coaches Can Teach Us About Trial Prep

Dean Smith, the hall-of-fame University of North Carolina basketball coach, was a master at preparing his players for opponents.  I once heard a story that described a time when Coach Smith had to get his Tarheels ready for an opposing team that had significant height at numerous positions around the court.  Rather than having a normal practice, he gathered brooms and mops from the janitorial closet and distributed them to defenders as arm extenders to block shots.  If Coach Smith’s players could shoot over brooms, then they could certainly shoot over their upcoming vertically-enhanced opponents.

Like many of the best coaches, Dean Smith knew that effective preparation often meant stacking the deck against oneself in practice.  This mantra also holds true for trial preparation.  It is easy to assume that a motion will be won to exclude damaging testimony or evidence, but what if the judge decides in favor of your opponent?  What if opposing counsel is more capable than first anticipated or an expert witness handles his or her deposition swimmingly?  

In my opinion, the best planning must assume that everything will go very well for one’s opponent.  In witness prep, this means helping those who will testify by practicing difficult cross-examination questions with great intensity.  In mock trials and focus groups, err in favor of the opponent when it comes to planning case presentations.  In mediation and negotiations, have a strategy that realizes the other side (rightly or wrongly) may be even more confident in their case than you are in yours.

Ben Franklin famously said, “An ounce of prevention is worth a pound of cure.”  While he was actually talking about house fires, the idiom has lasted for centuries for a reason.  There is an exponential return on carefully considered preparation that imagines and practices a variety of potential negative outcomes.  By imagining your opponents with brooms in their hands, you will be sure to arrive at the game with a perfect fade-away jump shot. 

Blogger: Matt McCusker

 

Doggie Witness Prep (Coming To A Courtroom Near You?)

Recently, a loveable dog named Rose (Rosie to her friends) sat next to a child witness in court while she gave testimony about the brutal rape and impregnation she endured at the hands of her father.  Yes, a dog sat in the witness stand.  Rosie is a service dog that can sense anxiety and was provided to the young witness to aid her in the process of testifying.  At one point, the help was very evident when Rosie “nosed” the child during a particularly difficult bout of answers.

While this is the first instance of “comfort dog” use during testimony in New York State, (as this article outlines) the practice has actually been happening across the country with child witnesses for some time (Arizona, Hawaii, Idaho, Indiana, etc.).  In this case, Rosie and the witness spent five weeks bonding (and prepping) prior to the trial.  The goal of the training was to help the victim reduce her anxiety about facing her father and being questioned on such painful memories in front of a courtroom full of strangers.

Not surprisingly, the defense attorney was up in arms about the dog’s presence (and is appealing).  It is certainly a valid point to suggest that the presence of a dog could be unduly prejudicial.  Would dog lovers view her more favorably?  Dog haters more unfavorably? Is it possible that a witness could lie more easily with a comfort dog present?  How would the dog impact opposing counsel’s cross examination?

These are valid questions, but the opposing response is more persuasive.

In State v. Cliff, 116 Idaho 921, 782 P. 2d 44 (1989) an eight year old victim of sexual assault was allowed to carry her doll to the stand because the court ruled the calming effect would aid in more accurate testimony.  A similar ruling occurred in Washington [State v. Smith 119 P.3d 411 (2005)] when a teddy bear was allowed to venture into the witness box.  In those cases, the defense unsuccessfully argued that the presence of a psychological security blanket would impede cross examination of the children.

Anyone worth their salt at witness prep will tell you that anxiety is one of the top barriers to effective testimony.  Much of what litigation consultants do is help in reducing witness anxiety so the truth can be more effectively presented on the stand.  Why would the reduction of anxiety in a child be a bad thing?  Further, service dogs for people with physical/mental handicaps have long been allowed in courtrooms.  Has the presence of these dogs created unjust verdicts?

Most importantly, the “comfort dog” accommodation has primarily been utilized with children.  A child witness has a special status with the court, which can be seen in states that allow closed circuit or videotaped testimony for child victims.  As this UST Law Review notes:

“…our Supreme Court  promulgated the Rule on Examination of A Child Witness  which acknowledges the special concerns of child witnesses that need to be addressed while testifying before criminal, civil, legislative, or administrative proceeding…  the main objectives of the said Rule are to ‘create and maintain an environment that will allow children to  give reliable and complete evidence, minimize trauma to children, encourage children to testify in legal proceedings, and facilitate the ascertainment of the truth.’”

Obviously, the rules of the game change when a minor is giving testimony.  Proper voir dire should spot those jurors who would not be able to set aside the influence of having a dog (or a doll, or a teddy bear) sitting with a child on the stand.  While there is some danger of prejudicial effects, the value of truthful testimony from a calm mind (and reduced emotional damage to the child) far outweighs the potential risk.

Those interested in utilizing comfort dogs in court can check out a sample brief here.

Blogger: Matt McCusker

 

W.W.B.D.? (What Will Blago Do?)

 As some of you might have heard, there was a family style civil war raging in the Blagojevich defense camp this week between a young firebrand and a sage journeyman.  The firebrand (Sam Adam Jr.) wanted to throw caution into the wind and have Blago testify, but the journeyman (his father, Sam Adam Sr.) said that this case would rest without hearing from the infamous governor.  The drama was palpable and the media was salivating.  Think Tom Cruise vs. Paul Newman in The Color of Money; or Tom Cruise vs. Robert Duval in Days of Thunder; or Tom Cruise vs. Craig T. Nelson in All the Right Moves; or pretty much any 1980’s Tom Cruise movie.  (You’re welcome Sam Adam Jr.)

Father versus son in a high-profile trial with a big-haired defendant who has ties to both the oval office and Donald Trump's reality TV office?  Some might say that this sounds too good to be true.  Some might even say that this sounds staged to increase publicity.  Sadly, much like how many licks it takes to get to the center of a Tootsie Roll Tootsie Pop… the world may never know. 

However, it brings up the interesting questions associated with putting witnesses on the stand (or in the deposition chair) who are likely to be liabilities.  While the media typically focuses on whether a criminal defendant testifies in his or her own defense, this is a luxury that most witnesses do not enjoy.  The fact is that witnesses who are friendly (but “unhelpful”) are a common problem for civil and criminal attorneys in all types of cases. 

Thomas Fuller wrote, “A fool wanders, a wise man travels.”  In seven words, I believe this quote sums up one of the key differences between helpful and unhelpful testimony.  Those witnesses who “wander” and try to verbally meander into what they think is “the right” answer are in trouble.  Those witnesses who focus on clearly understanding their departure point (the question) and efficiently “traveling” to their destination (the answer) fare much better.  You should always ask yourself: Is this witness reminiscent of a college student backpacking through Europe or a professional who is traveling to an appointment with a client?

While both direct and cross examinations can be dangerous for “wandering” witnesses, clearly the cross is the most perilous journey.  Dr. Louise Ellison and Dr. Jacqueline Wheatcroft at the Universities of Leeds and Liverpool have scientifically demonstrated this danger and tested solutions.

In their research (“Exploring the influence of courtroom questioning and pre-trial preparation on adult accuracy”), Ellison and Whetcroft showed mock-witnesses a simulated crime and then recorded subjects' reactions to two levels of scripted cross-examination questioning: hard-cross and soft-cross.  The hard-cross was filled with legalese and tricky phrasing (double negatives, leading statements, etc.), while the soft-cross had relatively straightforward questions.  As has been demonstrated before, witnesses were significantly less accurate with the hard-cross.    

However, they then went a step further and repeated the test with new subjects, but provided all witnesses with a simple pamphlet entitled “A Guide to Cross-Examination.”  In the paper, it was described as follows:

“…this document contained a short explanation of the two-fold function of cross-examination - to test evidence and elicit information favourable to the crossexaminer’s case - and practical guidance to assist participants when answering questions which included directions to listen carefully to questions, to ask for clarification if a question was not fully understood and to answer all questions truthfully. The leaflet also included an example of a leading question, a question containing a double negative and a multipart question, and, in reference to leading and multipart questions, advice that participants should not agree with a suggestion ventured by the cross-examiner unless it was accurate.”

Obviously, I wouldn’t be blogging about this paper if the pamphlet did not have a significant effect.  Those witnesses with preparation made significantly fewer errors than those without. (If a pamphlet can enhance skills, imagine what real witness prep can do!)

However, what was most interesting was the increase in requests for clarification by participants.  Research has shown that witnesses are often too intimidated to ask lawyers to clarify their questions.  This study demonstrated that simply reading an informational pamphlet before cross-examination caused the rate of requests for clarification by witnesses to jump in both groups.  Asking for an attorney to be clearer is one of the most powerful defenses while being cross-examined and witnesses seldom use it.  Thus proving the ancient Chinese proverb: “He who asks a question is a fool for a moment.  He who does not ask a question is a fool forever.”  Somehow I can’t see Blago pausing long enough to listen to the questions, much less asking for them to be clarified.

(UPDATE: Blago will NOT testify.  I just heard a thousand news anchors drop to their knees and scream “NOOOO!!!”  Thanks to ASTC President Beth Foley for inspiring this blog.)

Blogger: Matt McCusker

GOLDMAN SACHS' WONDERLAND WITNESS WORK

 So, you have to testify in front of the U.S. Congress?  Just remember these sage words of wisdom from Goldman Sachs’ attorney K. Lee Blaylock II (O’Melveny & Meyers):

“Long, thoughtful pauses followed by rambling non-responsive answers can easily devour half of a (congressional) member’s allotted questioning time.” 

The BLT (Blog of Legal Times) has a great article on Mr. Blaylock’s advice.  First and foremost: Always remember that congressional hearings are not about getting to the truth.

What!?  Witnesses should be “rambling?”  We have no intention of finding the truth?  I suddenly feel like I am sitting at a tea party in Wonderland and celebrating “A Very Merry Un-Birthday” with the Mad Hatter and March Hare.  Apparently, the end of the rabbit hole comes out somewhere near the Potomac.

While this advice may work to prevent congressional grandstanding, it is not the way to go in the courtroom.  Of all the mistakes that can occur in the process of trial preparation, the overestimation of witnesses’ abilities is likely the most common.

So, in the spirit of helping witnesses and attorneys everywhere (even in Wonderland), I have compiled a few common mistaken assumptions and their pitfalls.

(NOTE:  Watching the YouTube clips will make this post much more entertaining.)

 “My witness knows their business.”  Testifying is much like public speaking (which Gallup found as the #2 fear amongst Americans, just behind “fear of snakes”).  Testimony about work is not the same as talking to someone at a bar about what one does for a living.  For even the most rock-solid executives, being on the stand or in a deposition can be a nerve racking experience.  Remember, witnesses have little control over the Q & A process.  With loss of control, comes fear.  With fear, comes anger and defensiveness.  As we all know, an angry and defensive person looks like they have something to hide. 

Take a look at these depositions of businessmen who lost control…

Angry Businessman #1

Angry Businessman #2

“My witness is a successful expert.”  Even being an experienced expert witness does not equate to being a great expert for this case.  Without the proper preparation, experts can easily be caught off guard and look like a deer in headlights.  Check out this successful accident reconstruction “expert” who starts confidently but is apparently in desperate need of remedial math. (It gets good about three minutes into the clip, or is that 180 seconds?)

Uncomfortable Expert #1

 “My witness is really smart.”  Some believe that intelligence correlates with performance on the witness stand.  If this were the case, then Hollywood would be filled with Mensa members.  Oftentimes, those who are extremely intelligent have a diminished ability to handle the stress of being aggressively questioned without fighting back.  You might recognize this guy…

Famous Smart Guy #1

Those with high intelligence may also be used to being the manipulators, not the manipulated.  This loss of power can bring out the worst and cause them to try and take control of the questioning process, which is never a good idea.

Angry Businessman #3

(In the next clip, note the phrase: “I think your answers are unresponsive and rambling.”  This sounds like Wonderland testimony to me.)

Famous Smart Guy #2

While it’s easy to blame the witness, often the attorney shares equal fault.  Witnesses are walking into an unfamiliar world and need careful guidance and training.  They need to be taught how to stay calm.  They need things carefully explained to them.  They need to know why it is unhelpful to aggressively fight or try to overtly battle opposing counsel.  They need to be protected with breaks and provided with safe harbors when cross-examinations get heated.  Most importantly, they need practice.

The best witness preparation is practice in an unfamiliar space with an unfamiliar attorney asking unfamiliar adverse examination questions.  Just think if Alice had practice before conversing with the double-talking Cheshire Cat?  It is only through practice that the unfamiliar becomes familiar and witnesses can keep calm and focused.

A calm and focused witness is always the primary goal.  Sill, keep in mind that if the attorney loses composure, the witness doesn’t have a chance…

Let's Get Ready to Rumble!

Blogger: Matt McCusker

Why Your Witness Didn't Get Better After Watching Herself On Tape

Have you ever been told that to help a witness understand how to make a better impression, you should videotape her and have her watch the tape?  Has that technique worked for you?

It hasn't worked all that well for me.  For every witness who has been helped by watching herself on tape, I've seen several more who frankly admit they're not seeing what I'm seeing, or worse, pretend they do when it's clear they don't.  Now a new study suggests my witnesses aren't the only ones with this problem.  We're simply not able, this study suggests, to accurately assess our own body language.  

To see ourselves as others see us

BPS Research Digest did a great write-up on the study today.  Read the whole thing, but here's the key part.  Subjects were asked to rate their own levels of introversion or extroversion.  Then they were asked to tape a video commercial -- for another purpose, they thought.  But then the researchers told them the truth, taught them some tools to interpret body language cues to introversion and extroversion, and asked them to rate themselves again after watching themselves on tape.  They couldn't do it:

Long story short - they weren't able to. The participants' extraversion scores on the implicit test showed no association with their subsequent explicit ratings of themselves, and there was no evidence either that they'd used their non-verbal behaviours (such as amount of eye contact with the camera) to inform their self-ratings.

And it wasn't that the body language cues were too subtle to catch.  The researchers showed the same tapes to other subjects, giving them the same little course on how to interpret body language.  The outside observers did a far better job of interpreting the tapes.

Better ways to use video

This is one of those emperor's-new-clothes moments in science.  I've heard so many times that witnesses will magically see their faults on video that I sometimes wondered whether I was doing it right.  Now, though, I can confidently pass on the ways I've become comfortable using video in witness preparation.  What it boils down to is know your witness:

• It's a rare witness who can learn anything from video alone.  If you're asking someone to watch herself on video, you also need to be very specific verbally about what you're noticing in the video, what you think it conveys, and exactly how to change it.  (The terrific consultant Katherine James took one look at the tape of my television interview in March and said, "See how your forehead keeps wrinkling?  You're trying too hard.  Relax and slow down next time."  She was absolutely right.)
• Some witnesses should never see tape of themselves.  Some are intimidated by the sight of themselves on a television screen, at the very time when you're trying to instill confidence.  Others like their taped presentation so much it reinforces their weaknesses. 
• The main person who's going to be helped by videotape is usually you, so if you're using it, take the time to learn how to use it well.  New research on "microexpressions" by Paul Ekman and his colleagues is fascinating, for example.  (The presentation by Ekman trainer and researcher David Matsumoto was the talk of the American Society of Trial Consultants' annual meeting last week.) 
• Try different things with the tape; turn the sound down, watch it fast.  Watching a videotaped deposition awhile back, I fast-forwarded through a repetitious portion -- and realized that the witness was breathing in such huge gulps that her shoulders moved at least three inches up and down over each ten- or fifteen-second cycle.  I hadn't seen it at regular speed.
• When teaching any skill, it's usually more effective to show what to do than what not to do.  Instead of focusing on taped faults, think about demonstrating yourself what does work.  Be your own tape.

(Photo by Sam Greenhalgh at http://www.flickr.com/photos/zapthedingbat/3028956788/; license details there.)