When it comes to the delicate task of preparing a witness for deposition or trial, everyone has their own style. It is also true that every witness will have their own needs. Some know the drill already and just need to...more
The Reptile approach to courtroom persuasion aims to sell plaintiffs’ cases by invoking absolute duties for protection wrapped around a fear appeal that resonates with the jurors. Even with the Reptile’s ‘reboot’ version, the...more
In an era of increased juror skepticism and perceived “Nuclear Verdicts,” there has been a call for new thinking on defense side. The need is for fresh approaches to cut against the factors motivating jurors toward extreme...more
By Dr. Ken Broda-Bahm: To be clear, testifying isn’t acting. Testifying is telling the truth. And with apologies to those who will point out that good acting is telling the truth as well, there are some important differences...more
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, 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
It’s America’s case of the moment: Johnny Depp and Amber Heard, Hollywood’s former power-couple, now exchanging accusations of physical abuse in a Fairfax, Virginia courtroom. The defamation case initially brought by Depp has...more
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
Experienced trial lawyers know it is important that their witnesses are prepared to testify. At the deposition stage, and even when the likelihood of a trial is uncertain, it is critical to invest the time in making sure that...more
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
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
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
The persisting pandemic has brought with it more adventures in technology. Courts have seen an increased use of remote testimony and oral argument, and even fully remote trials. When it is done well, it can be surprisingly...more
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
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
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
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
So it is time for your critical meeting with the Client. Are they coming to your office, or are you going to theirs? Or, maybe it is the new option: Let’s just meet on the cloud. An article this past week in the ABA Journal...more
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
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
A few years ago, I had the opportunity to attend every day of a civil trial, and then interview all of the jurors at the end of their service. I planned out a very comprehensive interview for each of them, including running...more
“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
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
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
Attorneys know the feeling: With some of your witnesses, you just want to keep it simple, encourage them to keep their heads down, and limit the possible damage. With any luck, they’ll get through it with minimal damage to...more