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. . . .
20 Tuesday Jan 2015
Posted in Depositions, Discovery, Federal Rules of Discovery, Objections
≈ Comments Off on Deposition Advice for Witnesses.
Tags
Depositions, Dr. Ken Broda-Bahm, Leading Questions, Objections, Persuasive Litigator, Witness Preparation, Witnesses
Don’t Be Led (in Deposition), by Dr. Ken Broda-Bahm, Persuasive Litigator
The name ‘Discovery’ doesn’t quite do justice to the litigation phase it describes. When it’s done well and with purpose, the point of discovery isn’t so much to discover evidence as it is to create evidence. In deposition, for example, the deposing attorney’s fondest wish is not to discover the witness’s view of what happened, but instead to get that witness to confirm the attorney’s version of what the case requires. For that reason, taking a deposition is all about control. The deposing attorney would just testify on his own if he could, but the process doesn’t allow that, so the next best thing is to fully control the witness. And the best way to fully control the witness is to lead. . . .
24 Wednesday Dec 2014
Posted in Experts, Litigation, Trial Tips and Techniques, Witnesses
≈ Comments Off on Top Witness Preparation Tips for Litigators.
Tags
Depositions, Expert Witnesses, Ryan Flax, The Litigation Consulting Report, Trial Tips & Techniques, Witness Preparation, Witnesses
The Top 14 Testimony Tips for Litigators and Expert Witnesses, posted by Ryan Flax, The Litigation Consulting Report
Litigators and their witnesses are confronted with difficult situations during testimony, and it’s nice to have reliable ways out of those sticky situations.
Expert witnesses are engaged to provide their expert insight and opinions supporting their client’s case during testimony and are there to tell the truth to the best of their knowledge when questioned at trial or deposition.
Litigators get paid to ask good and, at times, tough questions to get desired answers from the opposition’s witnesses and to help their own witnesses do their best.
During both courtroom testimony and in depositions there are common situations where an attorney tries to make things difficult for the witness. Below, I identify 14 of these common situations and provide some good strategies, both from my own experience as a litigator and from tips collected from attorneys and expert witnesses. Consider the points below when advising and preparing your witnesses for trial and depositions. . . .
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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01 Friday Aug 2014
Posted in Cross-Examination, Litigation, Trial Tips and Techniques
≈ Comments Off on Can Your Witness Stand Up To Cross-Examination?
Tags
Cross-Examination, Direct Examination, Dr. Ken Broda-Bahm, Litigation, Persuasive Litigator Blog, Witness Preparation
Counterpunch: Ten Ways to Fight Back on Cross, by Dr. Ken Broda-Bahm, Persuasive Litigator Blog
http://www.persuasivelitigator.com/2014/03/counterpunch-10-ways-to-fight-back-on-cross.html
A good witness should not see cross-examination as an argument, but neither should that witness see it as a time to be agreeable and passive with opposing counsel. Because the inherent conflict of cross piques the jurors’ interest, it can be a critical time. The two sides are in direct conflict and the jury has the ability to decide first-hand who seems to be winning at that moment. Given the stakes, it is too dangerous for a witness to just be led along by opposing counsel, comforting themselves with the knowledge that, ‘Well, at least I got to tell my side in direct,’ or, ‘My own attorney will give me a chance to fix all of this in redirect.’ Both are valid comforts, but effective direct and redirect will never completely erase the perceptual losses that can occur in cross. Substantively, the problem might be fixed, but jurors will still remember those moments where the witness looked weak, and that cannot help but influence their perception of your case and of the witness’s credibility.
The way I’ve explained it before is that cross-examination is, for the witness, a polite struggle. ‘Polite’ because the witness can’t afford to come off as too combative or uncooperative — ‘I’m just here to tell the truth…’ should be the tone. But ‘struggle,’ because there is a skilled advocate at the lectern whose job is to, at least for the moment, support his story and not yours. A good witness needs to work against that purpose. Like any advice, the message to fight back’ can be taken too far, or not far enough. It is a matter of balance and practice, and it clearly helps to get feedback during a prep session or two to make sure the communication is assertive but not aggressive. With these considerations in mind, here are ten ways witnesses can maintain their own power while being cross-examined. . . .
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. . . .
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.
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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