19 Monday Mar 2018
Posted in Depositions, Discovery, Trial Tips and Techniques, Witness Preparation, Witness Preparation, Witnesses
≈ Comments Off on Witness Preparation – The Classics.
Have you ever prepared witnesses or clients for a deposition or trial? If you have, then you know these rules or techniques are the classics. Tried and true. If you haven’t, here is some of the best advice you will ever get. This is a “must bookmark.” -CCE
22 Saturday Apr 2017
Posted in Depositions, Discovery, Trial Tips and Techniques, Witness Preparation, Witnesses
≈ Comments Off on Trial Witnesses And Depositions Transcripts.
Use Your Deposition as Your Sword and Shield, by Dr. Ken Broda-Bahm, Persuasive Litigator™
Depositions can be taken months, even years, before a case goes to trial. Even though you may routinely provide every deponent with a copy of the transcript of his or her deposition, does the witness or your client really understand how important it truly is to study it thoroughly? Sometimes I wonder whether they see it more as a bother. Including a copy of this post might help. -CCE
See also Overlearn Your Deposition, by Dr. Ken Broda-Bahm, Persuasive Litigator™ at http://www.persuasivelitigator.com/2017/02/overlearn-your-deposition.html.
26 Sunday Feb 2017
Posted in Trial Tips and Techniques, Witness Preparation, Witnesses
≈ Comments Off on Excellent Advice for Witness Preparation.
Witnesses: Know Your Seven Ways Out of the ‘Yes or No’ Trap, By Dr. Ken Broda-Bahm, Persuasive Litigator
This post caught my eye. I was trained to prepare prospective witnesses to keep their answers brief, preferably to “yes” or “no.” If further explanation was needed or wanted, my lead attorney would ask appropriate questions during direct or cross-examination.
This post takes a different – and better – approach to respond using a variety of answers, regardless of the question asked. Although there may be times when a simple “yes” or “no” answer is the right thing for the witness to say, this post provides excellent advice that is well worth your notice. -CCE
17 Sunday Jan 2016
Posted in Depositions, Discovery, Trial Tips and Techniques, Witness Preparation, Witnesses
≈ Comments Off on Witness Preparation for Depositions. How to Say Enough But Not Too Much.
Witness, Don’t Teach” (in Deposition), by Dr. Ken Broda-Bahm, Persuasive Litigator™
One common piece of advice given to fact witnesses during deposition preparation meetings is that it isn’t their role to instruct opposing counsel on everything they ought to know: ‘Witness, Don’t Teach.’ . . .
Earlier this week, I was working with an anesthesiologist who simply could not deaden his impulse to take each question as an invitation to explain, expand, and expound. Applying our advice to ‘just answer the question and stop’ proved difficult once he got into the expository groove of his typical conversation style with colleagues, patients, and family members. That habit is one worth breaking, even if it takes some extra work and focus. . . . To aid in the continuing effort to convince witnesses to take off their teacher’s hats during the deposition, this post shares five reasons why that’s a good idea. . . .
21 Monday Sep 2015
Posted in Trial Tips and Techniques, Witness Preparation, Witnesses
≈ Comments Off on Should Your Eye Witness Look At The Jury On the Stand? If Not, Where?
Treat Witness Eye Contact As a Three-Way Conversation, by Dr. Ken Broda-Bahm, Persuasive Litigator™
Please note the additional posts at the bottom of the page on witness nonverbal communication. -CCE
The advice is as old as the art of communication: Look at the person you are talking to. And it is good advice. Eye contact makes it easier for audiences to stay engaged and more likely that speakers will focus on their targets. For a witness on the stand during trial testimony, that means ‘Look at the jury.’ But not just the jury. A witness who shuts out counsel and fixes their gaze only on the jury is likely to look a little contrived, or even creepy. So the advice is to look at the attorney when she is asking a question, and then look at the jury when delivering your answer. But that advice can create its own problem. . . .
29 Wednesday Jul 2015
Posted in Exhibits, Graphics, Legal Technology, Presentations, Trial Tips and Techniques, Witness Preparation, Witnesses
≈ Comments Off on Depo Prep – Is Less Really More?
Less is More When Preparing Witnesses for Deposition, by Thomas M. O’Toole, Ph.D., Sound Jury Blog
http://soundjuryconsulting.com/blog/2015/07/15/less-is-more-when-preparing-witnesses-for-deposition/
There is a popular 3M study that is often used to support the argument that attorneys should utilize more graphics in trial. The study found that audience members retained as little as 10% of the information three days later if the presentation was oral only; however, when presented the same information through both oral and visual presentation, the retention rate jumped to 65%. While this study is most often used to support the argument that presentations need a visual component, its implications can be applied to other areas of litigation. . . .
17 Friday Apr 2015
Posted in Closing Argument, Direct Examination, Jury Persuasion, Opening Argument, Trial Tips and Techniques, Witness Preparation, Witnesses
≈ Comments Off on The ABA’s List of the Top 25 Legal Movies.
The 25 Greatest Legal Movies, by Richard Brust, ABA Journal
http://www.abajournal.com/magazine/article/the_25_greatest_legal_movies
There is a unique group of movies that show the best — and worst — traits and practices by the legal profession. We all have our favorites. Check out the ABA’s list. Are your top choices there? If not, please leave a comment, and share your favorite. -CCE
What would Hollywood do without lawyers? In a town built on copyrights and cosmetic surgery, lawyers have done far more than pen the small print in studio contracts or post bail for hollow-eyed stars on the way to and from rehab. From the incisive Henry Drummond and the droll Mr. Lincoln to the callow Danny Kaffee and the regal Atticus Finch, lawyers have provided some of Hollywood’s most memorable cinematic heroes and some of its most honorable and thoughtful films.
Earlier this year, the ABA Journal asked 12 prominent lawyers who teach film or are connected to the business to choose what they regard as the best movies ever made about lawyers and the law. We’ve collated their various nominees to produce our jury’s top picks.
Together these films represent 31 Oscar wins and another 85 nominations as befits the best work of some of the greatest actors, writers and directors of their time.
So quiet, please. A rap of the gavel, a pull of the curtain, and ‘Hear ye! Hear ye!’ for the 25 greatest law films ever made. . . .
16 Monday Feb 2015
Posted in Depositions, Discovery, Evidence, Transcripts, Trial Tips and Techniques, Witness Preparation, Witnesses
≈ Comments Off on At Depositions, Ask the Witness To Show, Not Tell.
Tags
Court Record, Depositions, Elliott Wilcox, Evidence, Transcripts, Trial Theater©, Trial Tips & Techniques
Impeach Witnesses by Creating an Effective Record at Depositions, by Elliott Wilcox, Trial Theater©
The depositions were taking longer than expected, and they were some of the most boring depos I’ve ever attended. As we approached 3 o’clock, I could barely keep my eyes open. Luckily, closing my eyes for a brief moment helped me see what the deposition transcript would look like, and pointed out the difference between talking to the witness and talking to the record. Take a look at two sample questions that were asked:
“This blood here, is that from this general area here, or is that from another area?”
“Is this photograph here a photograph of this area here?”
Huh? Do you have any idea what they’re talking about? Do you know where the blood is? Neither will they when the attorney if she tries to impeach the witness using this deposition during trial. . . .
28 Tuesday Oct 2014
Posted in Closing Argument, Cross-Examination, Direct Examination, Opening Argument, Trial Tips and Techniques, Witness Preparation, Witnesses
≈ Comments Off on Former Convictions Do Not Always Ruin Witness Credibility.
Tags
Dr. Ken Broda-Bahm, Persuasive Litigator Blog, Prior Convictions, Trial Tips & Techniques, Witness Credibilitiy, Witness Preparation
Don’t Assume Prior Convictions Kill Credibility, by Dr. Ken Broda-Bahm, Persuasive Litigator Blog
The witness is in good shape and the testimony looks to be great. There’s just one little problem in his past: a conviction. Litigators are understandably concerned about any threats to witness credibility, but if that threat comes in the form of a rap sheet, that’s viewed as a very damaging fact, if not a ticking time bomb. The effects of a prior conviction are most often written about in a criminal defense context where the research generally shows that the fact of a prior conviction significantly increases the chances of a current conviction, particularly where the prior conviction is for a similar crime. But it can be a factor for any witness who’s had a prior brush with the law. In civil cases, crimes involving dishonesty can be admitted for the narrow purpose of impeaching a witness’s credibility. A recent study (Stanchi & Bowen, 2014) that focused on a civil trial context looks at the question of whether the damage is as bad as one might suspect. The results? No it isn’t. In a realistic controlled study, the researchers found that prior conviction evidence did not increase the chances for an adverse verdict. Instead, emphasis on the conviction caused mock jurors to frame the trial as more of a zero sum contest on witness credibility — a frame that can end up actually benefiting the convicted witness.
These results have some implications for attorneys assessing the risks to their witnesses’ credibility. . . . .
14 Sunday Sep 2014
Posted in Trial Tips and Techniques, Witness Preparation, Witnesses
≈ Comments Off on When Your Witness Goes Rogue.
Tags
Litigation Insights, Robert Gerchen, Senior Consultant, Trial Testimony, Trial Tips & Techniques, Witness Preparation
Why Didn’t My Witness Do What I Told Him To Do During Witness Preparation?, by Robert Gerchen, Senior Consultant, Litigation Insights
Boy, have I been there. After spending hours to convince a Vice President of Human Relations that, no, his idea of “explaining” to the case to the jury was a bad idea, of course, that is exactly what he did. It was like a nightmare in slow motion. –CCE
It’s a universal experience. Nearly every attorney who has ever sat down for witness preparation before a deposition, or before trial, to provide clear instructions and guidelines about what to say/not say, or what to do/not do, has at some point found himself asking:
“Why didn’t s/he listen to me?!” . . . .
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06 Sunday Jul 2014
Posted in Admissibility, Child Molestation, Child Witnesses, Criminal Law, Evidence, Judges, Sexual Assault, Trial Tips and Techniques, Witness Preparation, Witnesses
≈ Comments Off on Children as Witnesses.
Tags
Admissibility, Anatomical Dolls, Child Welfare Information Gateway, Child Witness, Comptenct, Leading Questions, Sexual Abuse
The Child as a Witness, from Child Welfare Information Gateway
https://www.childwelfare.gov/pubs/usermanuals/courts_92/courtsk.cfm
Good, basic information. I recommend that you check out the entire website. This is only a taste of what it contains. -CCE
09 Monday Jun 2014
Posted in Paralegals/Legal Assistants, Trial Tips and Techniques, Witness Preparation, Witnesses
≈ Comments Off on Witness Preparation – When May The Witness Show Anger?
Tags
Expert Witness, Legal Assistants, Legal Insights Blog, Litigation Insights Blog, Merrie Jo Pitera, Paralegals, Witness Preparation
Witness Preparation Tip: When Is It Appropriate For A Witness To Show Anger? by Merrie Jo Pitera, Ph.D. – CEO, Litigation Insights Blog
Many years ago, I was working on witness preparation with a corporate HR Director who was being deposed. It was quickly apparent from the moment that he walked in the room that he was not happy to be there. During his own mock direct examination, when the questions were clearly “friendly fire” from his own attorney, he was angry and aggressive. He was so mad that he was getting out of his seat and pointing at his own attorney with his finger when answering simple questions. What was worse, he was getting progressively more emotional and belligerent as the questioning continued. And we hadn’t even gotten to mock cross examination yet! It was clear we needed to take a break and pull him aside for a heart-to-heart discussion. In his current emotional state, he was the antithesis of an HR Director, and his display of anger was inadvertently reinforcing the plaintiff’s claims that the company did not care about his complaints of racial discrimination. An additional complication was that the HR Director thought his strong, angry reaction was helping his employer’s case.
While extreme, this witness’ reaction to testifying is not unusual. It is no secret that no one looks forward to being deposed. . . .
09 Monday Jun 2014
Posted in Adobe Acrobat, Animations, Bates Numbers, Legal Technology, Paralegals/Legal Assistants, PowerPoint, Presentations, Trial Notebooks, Trial Tips and Techniques, Witness Preparation
≈ Comments Off on Nine Top Tips for Paralegals Preparing for Trial.
9 Critical Steps for Trial Preparation, by David J. Dempsey, Paralegal Today Magazine (formerly Legal Assistant Today)
http://paralegaltoday.com/issue_archive/features/feature1_ja03.htm
I suspect that any paralegal with significant trial experience would have other things to add to this list. But it’s still good advice and a good start. -CCE
[P]aralegals play an indispensable role in the trial preparation process. It’s imperative that, in conjunction with the lead counsel, you design and adhere to a plan to make sure your energies — and those of the entire support team — are focused on the tasks that will contribute most to the success of the trial.
As the final phases of intense trial preparation approach, paralegals can wear many hats: coordinating schedules, monitoring deadlines, helping prepare witnesses and documents, organizing files and exhibits, preparing subpoenas and working with all members of the support team, including expert witnesses, outside vendors, and other legal assistants and attorneys involved in the trial.
Every trial attorney will use the talents of a paralegal in different ways. In my practice, I tend to rely heavily on paralegals and delegate a considerable amount of responsibility to them.
While the following guidelines will not work for every trial team, these are nine critical steps I believe paralegals can take to help make sure when the opening gavel falls at trial, your team is prepared to prevail. . . .
17 Monday Feb 2014
Posted in Appellate Judges, Closing Argument, Cross-Examination, Direct Examination, Federal Judges, Judges, Jury Instructions, Jury Persuasion, Jury Selection, Making Objections, Opening Argument, Oral Argument, Plaintiff's Counsel, Trial Tips and Techniques, Voir Dire, Witness Preparation, Witnesses
≈ Comments Off on Intolerance Is A Door That Swings Both Ways When Presenting Your Case.
Tags
Conservatives, Dr. Ken Broda-Bahm, Judges, Juries, Liberals, Persuasive Litigator, Politics, Trial Tips and Techniques
Account for Ideological Intolerance, by Dr. Ken Broda-Bahm, Persuasive Litigator™
It’s Valentine’s time again. It’s a holiday of love, but in the political world, we’re moving out of yet another debt ceiling standoff and there is no love lost between the two sides of the spectrum. Liberals point to yet another, albeit failed, attempt to hold the country’s full faith and credit hostage, while conservatives point to yet another increase in an already staggering national debt. Neither side can understand the values, arguments, and priorities of the other. And that’s just the debt. Add in social welfare programs, marriage equality, and — as the actual sign from an Arizona gun shop above testifies — gun control, and you’ve got a pretty bitter divide. Polling shows that we are politically more ‘tribal’ than ever before. As we’ve noted in earlier posts, liberals and conservatives appear to use their brains differently when assessing risk, and are resistant to applying basic empathy across the political aisles. . . .
11 Saturday Jan 2014
Posted in Trial Tips and Techniques, Witness Preparation
≈ Comments Off on The Importance of a Jury’s First Impression.
The Power Of First Impressions, by Douglas Keene, The Jury Room
http://keenetrial.com/blog/2011/04/18/the-power-of-first-impressions/
[W]e’ve written about many aspects of witness preparation before and have come to the belief that people come to firm conclusions about most witnesses very quickly. Now, as is so often handy, we have new research that shows us (again) why first impressions of witnesses are so very important.
06 Monday Jan 2014
Posted in Depositions, Direct Examination, Discovery, Evidence, Trial Tips and Techniques, Witness Preparation
≈ Comments Off on Everyone Knows You Never Question Your Own Witness At A Deposition, Right?
Tags
Above the Law (blog), Depositions, Direct Examination, Evan Schaeffer, Mark Herrmann, The Trial Tips Practice Weblog, Trial Tips and Techniques
The Need For Direct Exams Of Your Own Witnesses At Depositions, by Mark Herrmann, Above The Law Blog (with hat tip to Evan Schaeffer, The Trial Tips Practice Weblog)
04 Saturday Jan 2014
Posted in Closing Argument, Cross-Examination, Direct Examination, Experts, Judges, Jury Selection, Opening Argument, Trial Tips and Techniques, Voir Dire, Witness Preparation
≈ Comments Off on Courtroom Body Language – How to Read It and Use It In Court.
Tags
Attorneys, Body Language, Expert Witnesses, Judges, Legal Skills Prof, Legal Skills Prof Blog, Trial Tips and Techniques, Witnesses
Tips For Reading And Managing Courtroom Body Language, by Legal Skills Prof, Legal Skills Prof Blog
The most brilliant trial attorneys seem to have a natural instinct for reading people, knowing intuitively what a nod from a juror or glance from a judge implies. For the rest of us, there’s this handy cheat sheet that breaks down some of the most common body language exhibited in the courtroom. You can use it to modulate your own behavior, train your client, or gain additional insight into opposing counsel, judge and jury.
28 Saturday Dec 2013
Tags
Advocacy, Lawyer, Mock trial, The Trial Lawyers Library, Trial Tips & Techniques, trialtheater blog
The Trial Lawyers Library, trialtheater blog
http://www.trialtheater.com/wordpress/the-trial-lawyers-library/
A trial lawyer’s list of recommended books to develop trial advocacy skills. Although some of the titles may surprise you, each has an intended purpose directly tied to trial advocacy. – CCE
25 Friday Oct 2013
Posted in Direct Examination, Experts, Jury Selection, Legal Technology, Trial Tips and Techniques, Witness Preparation
≈ Comments Off on Trial Technique Courtroom Tips
TRIAL TECHNIQUES: What lawyers should (and shouldn’t) worry about in the courtroom, by Alexandra Rudolph, WisLawJournal.com
http://bit.ly/uDFH17
The Researching Paralegal 
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