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Witnesses, Know What You Don’t Know: Six Principles for Your “I Don’t Recall” Answer

Michael Cohen, the “Fixer” for Donald Trump, has recently gotten off the stand in the former President’s “hush money” trial. Those taking aim at Cohen’s testimony have pointed out frequent use of “I don’t recall” on many of...more

Masks in Court: Understand the Real Lesson

As we begin to take stock of and conduct research on the effects on the pandemic adaptations, it is important to keep an essential principle in mind: The research on pandemic adaptations is not just about the pandemic...more

Witnesses, Don’t Create Obstacles to a Positive Perception

Witnesses, I’d like to have a word. You know the most important audience for your testimony — the jurors in the courtroom with you, or the future jury who might someday see a clip of your deposition? That audience is kind of...more

Take the Medicine: Three Steps to Pre-empting Your Witness’s Bad Stuff

You have your witness on the stand in direct examination. You have finished laying out the positive story that you want to tell, but you have one more thing to do before handing that witness over to the other side...more

First Answer in Direct: Introduce Yourself to the Jury

As you are putting on your case at trial, and you go to call your next witness, there’s always a reaction from the jury box. It’s an opportunity for fresh attention from them, but it is often a bit of a mystery...more

Witnesses: Know that Certainty Matters as Much as Accuracy

When thinking about the title for this post, I came awfully close to saying that certainty “matters more” than accuracy, but I thought that perhaps it might sound too cynical. But that stronger version is supported by the...more

Play Recorded Testimony Without Creating Courtroom Naptime

If you remember even a few images from kindergarten, you probably remember the time when your teachers would lay out the mats — that was the cue that it is naptime. One might say that the similar cue in a courtroom is when...more

Witnesses: Protect Yourselves Against the “Just Answer Yes or No” Instruction

It sometimes happens in the course of testimony: After what might have been a longer or misdirected answer, the witness will receive a stern admonition from either the questioning attorney, or worse, the judge...more

Witnesses, Don’t Be Surprised by Surprises

So you’re preparing for your trial testimony, and the discovery has been voluminous. Out of the mountain of documents that opposing counsel might wave at you, there are a handful that are most likely to be relevant to you....more

Your Direct Examination: Know the Steps, but Let the Attorney Lead

When preparing for trial testimony, often the focus is on what opposing counsel is going to do. You prepare for cross, naturally enough, because that is an adversarial moment. But my own view is that direct examination should...more

Know How Your Testimony to the Jury Will Differ from Your Deposition

A typical witness preparing for a civil trial often has only one good reference point for what their experience will be, and that is their deposition. That’s where they met opposing counsel, got a taste of that attorney’s...more

Opening: Build Your House First, Then Take Aim at Their House

I have worked with more than one defendant who simply could not resist it: Right out of the gate, in opening statement, they come out swinging against the plaintiff. They’re not being honest, they have their own share of...more

Expect a Complex Response to Emotional Testimony

Kyle Rittenhouse, the then-minor charged with killing two and wounding a third at a protest in Kenosha Wisconsin in the Summer of 2020, took the stand in his own defense at his trial yesterday. The case is a kind of litmus...more

Account for Camera Perspective Bias

This past Friday, eight people died at a music festival in Houston, crushed by a crowd as the music continued and security was unable to help. As the tragedy moves toward litigation, it is likely that this will be another...more

Testimony Mode: Note the Tradeoff Between Information Density and Juror Sensitivity

Here’s an intuitive belief that many who work in the field of law might adhere to: More information leads to better decisions. Those who work in the social sciences, however, know that this does not always hold true. Based on...more

Consider the ‘Message Effect’ of Inviting a Consultant to Help Your Witness

Arriving for the preparation meeting, the witness notices that there’s someone new in the room: a communications consultant. A non-lawyer visiting from out-of-town, the consultant is introduced by the lawyer as a specialist...more

Witnesses, Add to Your ‘Truthiness’ by Showing Pictures

The idea is a merger of pop culture with academics. In pop culture, “truthiness” refers facetiously to the feeling of something being true, independent of its actual truth value (a term coined by late-night comedian, Stephen...more

Don’t Enter That Time Machine: Ask the Question, “What Would You Have Done Differently?”

“Looking back at this situation, what if anything would you do differently?” Witnesses can be asked that question in a variety of case types: medical malpractice, products liability, contract, fraud, and really anything that...more

Witnesses: Don’t Rely on ‘Catcher Signals’

At a recent meeting with a witness to prepare for deposition testimony, and after I told the witness (more than once) to keep their answers short and not to stray beyond the question when answering, the witness asked, “Could...more

Witnesses, Treat It As a Question, Not a Topic

Q: At the time you signed the contract, did you believe that all of your business partners had the capacity to comply with its terms? A: Well, here is what was going on when I signed the contract: The business was growing...more

Prepare Your Witness Virtually: Seven Best Practices

As we are moving up yet another hill on the pandemic case-count rollercoaster, hopefully the last rise before the final descent into a vaccine landing zone, courts are once again pulling back in–person trials, while lawyers...more

Transition With Meaning: Nine Ways to Avoid “My Next Point Is…”

All the way back to my days as a public speaking professor and debate coach, I stressed the practical importance of a transition. The goal, I emphasized, is not just the formal nicety of appearing organized, but is rather to...more

Allow a Little Awkward Silence

Trial lawyers work in words: language that is precise, economical, and influential. Those words are the water that litigators swim in, and for that reason, the absence of words can be a little uncomfortable. That can be an...more

The Reptile Question: Give a Good Answer

“You would agree with me, wouldn’t you doctor, that a physician should never needlessly endanger his patient, right?”  That is a recommended question, probably the main recommended question to plaintiff attorneys who are...more

Adapt to Remote Communication (Including Testimony)

Okay, show of hands: Two weeks ago, how many of you were familiar with Zoom, Webex, GotoMeeting, and/or MS Teams? And how many of you are familiar with them today? These tools for multi-party videoconferencing over the...more

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