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
When preparing a witness, there can sometimes be a strong impulse to say, “Just answer the question.” That impulse comes from an appropriate desire to keep things simple, and to keep the witness from wandering or waffling....more
So you’re conducting a deposition or cross-examination: Where is the witness? Are they right there in the room with you, or are they many miles away in a room with their computer? With the pandemic still raging across the...more
Sometimes greater confidence is the last thing a witness needs. When your fact or expert witness is arrogant, unprepared, or careless about their upcoming testimony, they might need a reality check through a preparation...more
A couple of witnesses had about the most high-profile testimony turn imaginable the other day. As the public phase of the House impeachment hearings got underway on Wednesday, the first up to bat were George Kent, top State...more
God is Love - Love is Blind - Stevie Wonder is Blind -Therefore, Stevie Wonder is God -
That’s an exaggerated version of a kind of fallacious thinking that is often used in witness examination. It is a form of the...more
Attorney: “To help prepare you for your testimony, let’s review what they’re going to ask about. They’re going to ask about Smith’s performance reviews.”
Witness: “Okay, I can talk about these…”
Attorney: “Great, so…Why...more
The simplest way to think about persuasion is as a transaction: You step up and make your best pitch, and then your target audience either accepts it or doesn’t. The conversational way of talking about whether our audience...more
It is the classic scenario for a false confession: The suspect sits in a small room answering the same questions over and over again as the detective repeating those questions grows more and more exasperated. Finally, as the...more
For someone starting out in a career, or in some other situation where credibility will be required, there is an expression: “Fake it until you make it.” In other words, if you act like you’ve got it, then people are going to...more
Testifying is difficult enough already. You’re trying to give complete and honest answers while a trained attorney is asking hypotheticals, making distinctions, digging into details, sometimes applying arcane legal standards...more
Prior to deposition or trial testimony, it is common for witnesses to have one or more meetings. These are sessions with their attorneys, and sometimes with others including trial consultants or client representatives. One...more
It is one of the central messages of witness preparation: Be confident, because if you’re confident, you’ll be more credible. Once, I got the reply from a witness, “But I don’t feel confident,” and the question, “Should I act...more
When testifying, there are some situations where a “less is more” rule applies. In a deposition, for example, you don’t want to aid the other side, and will often prefer conciseness. However, when undergoing cross-examination...more
A few days ago, after the National Rifle Association got wind of a new issue of Annals of Internal Medicine which included several articles on gun control, the organization tweeted back at the doctors: “Someone should tell...more
It is almost election time again. But the normally low-turnout midterm may not be in the cards this time around, owing to the outrage on both sides of the political spectrum. And some believe that it’s a shame that we have...more
The witness is somewhat slumped in the chair as the cross-examination bears down on him. As the defendant, he knows he is the focus, the civil law’s version of “the perp.” As he is confronted with each of the plaintiff’s...more
Let’s consider the life cycle of the Reptile — not the slithering, cold-blooded animal, but the strategic approach to arguing plaintiffs’ cases advocated by David Ball and Don Keenan. That perspective, trying to win by...more
In the game of chess, the difference between a novice player and an experienced player can be boiled down to two words: thinking ahead. The experienced player doesn’t just move their piece’s toward the opposing king. The...more
When you read a good novel, you sometimes can’t wait until it’s made into a major motion picture. While the scale might be smaller in the legal publishing world, the benefits of extending an initial vision are parallel. In...more
When advice is given on a general subject, it can sometimes sound a bit like platitudes. And, as with platitudes, it often seems like one cancels out the other. “Look before you leap,” the saying goes, but, “He who hesitates...more