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The Horse's Mouth: The Trial Lawyer's Techniques for Storytelling Using the Witnesses' Own Words

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The Horse's Mouth: The Trial Lawyer's Techniques for Storytelling Using the Witnesses' Own Words

Effective trial lawyers use storytelling to develop a thematic narrative that leads the jury to a desired verdict. This course goes beyond basic devices for controlling witnesses (such as leading questions on cross-examination), and offers techniques for maximizing the storytelling impact of witnesses’ own words.

Transcript

Hello, my name is Tracy Tool. Welcome to the Quimbee seminar on the horse's mouth. The trial lawyers techniques for storytelling using the witnesses own words. Just a bit about myself. I'm a trial lawyer in the state of Wisconsin and Minnesota primarily. I've been practicing as a trial lawyer for more than 30 years. The focus of my practice is primarily representing plaintiffs in injury cases, bad faith insurance disputes, product liability, medical malpractice and nursing home malpractice. I have also handled cases in a variety of other jurisdictions on particular subjects, usually on certain kinds of products that have focused litigation on. I also teach at the University of Minnesota as an adjunct professor and have been very active in coaching trial skills over the years at various levels, including high school mock trial students, college students and seminars like this one, as well as my law school teaching. So I have a strong interest in what we do as trial lawyers to present our cases. And our focus today is going to be on using the witnesses own words to tell our story, to make our case. But we start with the basic elements of persuasion, and that leads us to storytelling. Storytelling is one of the most effective ways that trial lawyers can use to be persuasive to a jury. Persuasion is our task as the trial lawyer. We want our side of the case to be accepted by the finder of fact. The judge. The jury. Long ago, Aristotle identified three methods of persuasion, which I find helpful to think about as ways to sort of group the techniques that we use for persuasion. Ethos means personal credibility, likability that the audience is accepting of you as a person. Logos is logic, rationality, having good evidence and having rational connections between the evidence and the conclusions you want to reach, like Spock, the logician. Pathos is more the emotional side. It's developing an emotional connection with the audience and asking the audience to go along with you at an emotional level. Good persuasion taps each of these three elements of persuasion, ethos, logos and pathos because different audience members respond differently to different elements of persuasion. So a person who's very rationally minded might find it more compelling to receive a Logos appeal, but someone who's really tied to emotions might find a pathos appeal to be all that more compelling. I try to remind myself in any closing argument, in any jury trial, to have elements of the evidence and presentation that will hit on all three of these, because my presentation tends to focus on logos. That's my nature and I can understate the pathos if I don't think about including that method of persuasion. Human history thrives on stories and myths. It's built into our evolution and our psychology as humans. It's a way that we've learned knowledge over time through the oral history of storytelling, through storytelling, using pictures, words, song. And it remains a compelling means of persuasion across differing learning styles. So different audience members might respond better to ethos, logos or pathos. They might be more of a visual learner. They might like to see the words. They might like to listen to words. People have different learning styles, but storytelling is an effective, persuasive method across all different learning styles. Ted Bauer noted in an article on the neuroscience of storytelling that when we see or hear a story, the neurons in our brain fire in the same patterns as the speakers, a process known as neural coupling. You also hear it referred to as mirroring. These processes occur across many different areas of the brain and can induce a shared contextual model of the situation. So the networks within our mind respond to storytelling, and that fires off things like dopamine that make responding to the story pleasurable for the audience. So Built into Our Neuropsychology is a receptiveness to storytelling. In persuasion. We have to be aware of the dangers of confirmation, bias and cognitive dissonance. These are lessons we learn from psychology, and once we're aware of the dangers, we can even learn to use these psychological phenomena to our advantage. Confirmation bias refers to the human tendency to collect and stress emphasis that supports a pre-existing understanding or belief. Cognitive dissonance refers to the discomfort or confusion associated with the tendency to filter out new information that conflicts with pre-existing understandings or beliefs. In other words, we walk into a situation with a certain bias and we tend to accept new information that confirms our bias and supports our way of thinking. And we tend to reject or block out the new information that contradicts our bias or belief. So it's one of the reasons why we have to be aware of what what is the baseline of our audience? How are they likely to look at this walking in so that we can be aware of how they're likely to react to new information? Stories provide a line of thought that forms a baseline from which to get new information. The momentum of the story helps guide where and how the mind will apply. New information. Where does the new data fit and effective story helps the evidence make sense? So by using storytelling as a method of persuasion, we're giving the audience a clothesline on which to hang new information, and it gives them a through line from where they start from and where they want them to go, where we want them to go in accepting our evidence and our theory of the case. So the story is a way to help us guide the audience through their their cognitive phenomena to reach a conclusion that we want. From storytelling. It's always useful to think about the elements of the story. A good story has the cast of characters. We think about the protagonist, the kind of the person who is the focus of the story. The person kind of could be the hero. It's not necessarily the hero. It's the main actor. The antagonist is the conflicting character, the person who creates conflict with the protagonist. Think about the Greek chorus. The audience is part of the story, but in the traditional Greek theater model, that means that the Greek chorus could chime in as the story develops. And we want to be aware of how the audience in our case, often the jury wants to participate as the Greek chorus. They usually are not going to vocalize their viewpoints, but they might be starting to cheer for one side or the other, and it's going to dawn upon them as the trial progresses. If it's not told to them initially that they will be making a decision at the end. That is really the culmination of the story. So in that way, the jury becomes part of the story that's being told. Every high school drama coach said. There are no small parts. There are only small actors, as some say, but there are no small parts. That means that through the throughout telling the story, we have to remember that every witness, every piece of information, every witness who comes to the jury, perhaps even through a document and is not there in person, can be an important part of the story. Besides the characters, there is the plot. What happens? We think about in storytelling using a storyboard. That means kind of a diagram that you might put on a whiteboard as you're planning your trial. Think about how the story is going to develop. Draw it out as a narrative line from beginning to end, and then you can think about draping the witnesses and the evidence on the storyline as shown on your storyboard. Remember that good storytelling often has cliffhangers that are there are ways to whet the appetite of the audience for what will come next. So you might tell the jury an opening statement. Here are some interesting questions that you can think about, and I'm not going to tell you the answers yet because you'll have to get those answers from the evidence that comes to you through the course of the trial. Think about using cliffhangers as you present a case because they're effective ways to make your story compelling to an audience in any setting. Crosscuts are. A form of storytelling technique that were really used in early film making and found to be very effective in early cinema. When the audience is drawn from one scene back to another scene, back to the first scene, there's a chase going on. And you know, here come the the horses, the, you know, the the the the cavalry is coming in to try to save our protagonist. And now we cut to the protagonist to see if they're still alive and they're under fire back to the cavalry. Here they come. So cross cutting back and forth is an effective storytelling technique. Think about how you can use that in presenting evidence. We're going to talk about direct juxtaposition as we move into the trial techniques here. And cross cutting in storytelling is one of the reasons direct juxtaposition is effective in trial presentation. There are different classic story patterns that you can think about presenting. The hero's journey is one that's Joseph Campbell's classic narrative model. The hero ventures forth from a common world, encounters great conflict or tribulation, usually in a faraway land, and returns empowered in some way. Another model of storytelling is just good versus evil. I like to use the paperback mystery or the CSI storytelling model when I can talk to the jury about how there's a mystery. That's why we're here. It's a court case and a mystery that needs to be solved. And we're going to look at this like detectives, like we're, you know, doing a CSI and we're going to uncover facts and evidence as we go along. And often the jury appreciates that and it keeps their attention and accentuates their inquisitive minds. Another technique of storytelling is very valuable in the trial setting, especially when we can sort of think about the words we're going to hear from the witnesses and then formulate those words into a narrative in the present tense. So we're going to figure out what our story is, and then we're going to start telling our story in the present tense An opening statement or closing? Sometimes both. Sometimes only one or the other. Something like this. Members of the jury. Let's go back to the morning of the shooting. We know the meeting is supposed to start in the conference room at 9:00. We look at our phone. The time is 855. We open the door to the conference room. We walk in, we see heads turning toward us, but nobody says a word, a loud bang, a burning sting in the chest, A right shoulder hits something hard on the floor. We look up, we're dismayed. The checkered tiles of the ceiling are visible. The blue and white checks are what stick in our mind before we lose consciousness. So if that is the experience that one of the witnesses is going to describe, we can go back and dramatize it for the jury in the present tense. And that draws their attention and gets them into our story. And once they're into our story, it's all the more likely they will be into our storyline and then we can make use of all of those cognitive issues that help us with persuasion. We give them new information that fits our storyline, and they're more accepting of it. Consider in storytelling and persuasion using the words of the witnesses. Uh, including the our opposing witnesses that small group dynamics matter. What do we mean by small group dynamics? Communication within a small group of people. And a jury is a classic small group. A small group. The number that we would call a small group depends on the circumstance. But a jury of six, eight, ten, 12 certainly qualifies. And small group dynamics is an element of the speech communication discipline that has been studied, thought about, written about, taught, and has a lot of wisdom for trial lawyers. Some of the key, key elements of small group dynamics are leadership number one. Some 1 or 2 people are going to emerge as the communication leaders of a small group, particularly at the small group, is tasked. They are told they have a job to do. We might go into a bus station or a train station and sit around in the waiting room with 10 or 12 other people and there's virtually no communication. We might not talk to one another. In fact, in today's world, we usually don't look at our phones, we look at our iPads and we don't share conversation or information. We have no task at hand. But let's say there's a giant storm and there's a chance that a bus or the airplane or whatever may be delayed or may leave but encounter trouble. Suddenly we've got a topic to discuss. And those of us who are waiting may engage each other. And we look to 1 or 2 opinion leaders who might start the conversation and think of ways to check on the status of the bus or the train or the plane, and what are we going to do about it? Are we going to wait? Are we going to stay? Do we have to ask management, Is everything okay? Leadership within the small group dynamics is one important factor. Another important factor is what is referred to as rhetorical vision. Using fantasy themes. What does that mean? Well, it was pioneered by a thinker named Ernest Bormann in his book Fantasy and Rhetorical Vision, and he had many other works and others have written on this topic as well. But by studying the communication dynamics of a tasked small group, Bormann was able to identify that the small group tends to come up with a single rhetorical vision. It's kind of an outlook on the world. So they develop a story, they develop a storyline, and they put the information together in pieces that fit the storyline. And ultimately that becomes a rhetorical vision. And when they all buy into it, when the small group all buys into it, they have a positive emotional response to it. They feel good. The dopamine clicks in, they figure they're solving the problem. They've gotten to the bottom of the detective story or whatever the narrative is. There's going to be a rhetorical vision, and it's rhetorical because that story is expressed in persuasive terms. So they have reached a conclusion among several possible conclusions, and now they're ready to express it. And one of the features of small group dynamics that leads them to the rhetorical vision is the use of fantasy and fantasy themes. That means colorful language. Words that are compelling shortened phrases. If it doesn't fit, you must acquit. Talk to me like I'm six years old. Short little phrases that are compelling to the small group Get repeated, get accepted, and help lead the small group dynamics to a rhetorical vision among the group. So that's being conscious of these small group dynamics is one of the reasons why we want to focus our techniques as trial lawyers on using this information to help us. We want to feed the members of the jury. Fantasy themes, short phrases that are catchy, that are descriptive, that are colorful, that they will remember and want to repeat that, persuade them, and that they know they can use to persuade others bits of information, particularly words or words mixed with images, words mixed with the piece of evidence, a document and its shorthand description. We want to give those things to the jury so that they fit them into their storyline in a way that they can use in developing their rhetorical vision. And often we can find those words in the words of the witnesses and even our opposing parties in their evidence. I searched for those when I'm preparing for trial. I find I try to find things that are will be compelling when repeated and produced in the trial setting. How do we find the witnesses own words? Usually in prior statements, we look for articles the witness has written. Do we have access to their letters and correspondence? Emails, Texts? Don't forget about social media that the witness may have generated. We have notes. Are there statements, statements? I put in quotation marks because that's a loaded word in the litigation process. It usually means something that's formally taken and under oath it can refer to something that's not under oath, but is elicited by an interviewer in view of litigation. Um. Have they given any formal statements? Are there any court files in our case or in other cases relating to this witness that we can go through to find their own words? If there's any criminal matter related to this. And the witness has pleaded, they may have had to give a statement during their sentencing that may contain some admissions that are helpful. Has there been any trial testimony from this witness or from another witness quoting this witness that gives us words of theirs that we can use? And of course, depositions prior to discovery testimony that we can use in our case. Depositions that we may take of the other side. We you know, we don't depose don't depose every possible witness. It's expensive. To take depositions and it can use up time. It can have the disadvantage of just alerting the witness and other counsel as to where you're going with your theory of the case. So choose whether to take depositions wisely. You don't necessarily need to depose everyone who's on deck for trial. In a deposition, it can be useful to ask open ended questions. What happened? Why did it happen? Anything else about this incident? Have you told us all you can remember? Asking open ended questions gives the witness an opportunity to give long narrative answers, and the longer they speak, the more likely they are to think out loud. Speak before they really thought through the answer and to provide useful information. If you want to lock in their testimony, that's when you turn to tight leading questions to force them to answer yes or no on the key point that you want to lock in. If you feel like it's not been sufficiently made deadly clear by their open ended answers, when you have what you need from a witness, generally stop. That means once they've given you the words you can use. You don't need to ask it again, because if it's on the record, it's on the record. Along with that, we don't want needless repetition and always be conscious of the story that we're putting together. As I'm listening to the witness in a deposition, I'm taking, I'm trying to picture to myself, what if I am reading this segment of the deposition to the jury or if it's a videotaped deposition? What if I'm playing this segment of the deposition to the jury? Is it going to be effective? What will it sound like? Think about the words the witness is using and how that's going to play into our into our storyline and how it might help develop our storyline, especially if the witness in deposition is giving us some catchy little phrases or terms that we might use to build our fantasy themes and build our story. Using depositions in court. We look at Rule 30 of the federal rules of civil procedure. As guiding rule and adverse party under subsection 3rd May use for any purpose. The deposition of a party or anyone who, when deposed, was the party's officer, director, managing agent or designee under rule 36 or 31. This is an important rule that some judges don't fully appreciate in federal court. They usually do. But I've encountered judges in state court who, under the counterpart rule of that state court jurisdiction, don't fully get that, even if the witness is available to testify at trial, even if they're sitting in the courtroom. If I've taken their deposition, I may use that deposition for any purpose. As long as that witness is a party or one of these other categories, the parties, officer, director or managing agent, just a low level employee doesn't fit there. But if it's a party, especially a corporate party, I can use the deposition for any purpose. I don't have to just call the witness. Also, you can use depositions if the witness is unavailable under Rule four, but we don't turn to that one unless subsection three isn't helping us. Here's where we get to active direct juxtaposition at trial as a. Significant technique to use. The witnesses own words to tell your story. We live in a society now where our audience members. Look at social media, look at TikTok short videos on Twitter or or other social media Snapchat. People are conditioned to get information in short, concise bursts and to gather points, not by pondering over hours of data that accumulates in front of our minds, but rather by putting together the A plus B plus C that we get in 30, 60, 92nd bursts. So juxtaposition is a way to make use of that phenomenon. I told you about how a deposition can be used of a party can be used by for any purpose. Usually before trial, you have to disclose the portions you intend to use, and you do that in writing as part of pretrial disclosures under the federal rules and usually under state court counterparts that I'm aware of. What you do is you read the deposition segment. Of the other witness on the other side and then you disprove it. Ideally there's like 1 or 2 points. Don't read eight points in a deposition or 12 points in a deposition. 1 or 2, maybe three, maybe three. But something key and direct and important. Read the deposition segment. That's short and then call a witness that disproves it. Or I call a witness who has foundation for a document that disproves what I just read. We juxtapose actively and directly in a short time period how the deposition testimony, the words of the adverse party or its officer, director or managing agent. Our adversaries words are disproven. We directly juxtapose good evidence against their bad words, and by doing so, we make a very compelling, dramatic storyline presentation that the jury can understand. And the judge may not allow us to hack up a deposition and just read short segments of it, like 20 short segments and offer witnesses and proof in between. But if it's only a couple of shorter segments, the court may allow it. And by using the deposition for any purpose, what I tell the judge I'm going to do is read it in, read it in front of the jury, just or have someone take the stand in the position of the deponent and just read that portion of the deposition, Come off the stand, put on my proof. This works very well. If you have a witness who is on behalf of a corporate party that's, for example, designed and manufactured a product and says has said a lot of positive things about that product in their deposition, that turn out not to be true and conflict with evidence. And if you can put that witness on and then contradict their platitudes about their own product with other evidence, it really shines in front of the audience. Aside from the witnesses own words, we can look slightly beyond it. Two words The witness must accept or deny very directly. Some ways to do this are to look for published information from organisations the witness is tied to. So if they are an engineer and there is a professional engineering association, we can look to professional publications of that association. So we want to get, if the witness is a professional, get their CV and look to their affiliations and then look at publications from the professional associations related to that industry and their affiliations. Look for words that they will have to accept and they should accept them then. And if they deny them, perhaps all the better, because that's undermining their own credibility. Either way, accept or deny. The useful words we find in the published information are going to help our side. Publications, not just in the witnesses own profession, but sometimes in related professions can be helpful. Industry standards are often published articles and treatises written by others, but others who are recognized as authoritative in the industry or profession can be brought in using the learned treatise rules. Search Engines. Just googling things about the witness, about the topic can lead to very interesting information. Had a railroad negligence case. And involved allegations of improper. Behavior by improper handling of an engine by an engineer. And we just by Googling, we found some publications of the engineers union that the engineer was a member of and the publications from that. That union really helped us to corral the testimony of the engineer, just as one example. But we would not have found without Plano Google. Look at their old CVS and bios from the Internet and see if anything has changed. And of course, Westlaw, Lexus, Bloomberg and some other online legal databases have access to words as well. A way to use the witnesses own words at trial relates to the technique of anchoring. It's really important going into trial. If you want to be effective to know your anchors. What is an anchor? It is a cold, hard document, a fact or a theme, something clear, something strong, something that's on your side. The closest thing to a smoking gun, a photo, a document, a piece of information no one can deny. A hard core statement of theme. You don't want to have ten of those. But to. Is good. Three ish again. Okay. One can often be enough. But it's it's a way to literally anchor your presentation. To make sure that you always have a solid ground to fall back on when you're examining witnesses. So I think about having an anchor for each major witness that I'm going to cross-examine. And there that anchor is something that I know I'm going to use with them before they ever take the stand. And the the anchor is usually something that it's in their own words or it's words they have to accept from another source. And I will, in the course of cross-examination, reference those anchors to promote organization continuity. In other words, I'm asking some questions to the witness, but I'll always bring them back to the anchor. And of course, Miss Witness, you accept the fact that on the day of this incident you were not present? That's a key fact. Perhaps with this witness and bring it up to three times throughout the course of the cross-examination. It's also a way to control the testimony and regain control when a witness dashes away. By that, I mean the witness goes off and is making an argumentative point and telling a narrative and saying things that are irrelevant and kind of embellishing. Once they're done, if they're allowed to testify over your objection, or sometimes even you let them go because, you know, whatever they say, talk, talk, talk, you can remind them of the anchor, you know. Ms.. Witness You testified for two minutes about meeting Ex that took place, but we all know again, the very next day at meeting why this decision was made, the decision shown on this exhibit, right? So you bring them back to your anchor. It also allows you some freedom to ask some questions you don't know the answer to. Because if the witness starts getting away from you, you know, you can just reach back and remind them of the anchor. Now, a judge may not let you do that six, eight, ten times with a witness. Three times. Usually it's going to be effective. And it's a way to bring you back to your theme, back to our story, back to our controlling and the witness, usually by using their own words as anchors. Another trial technique that supports our use of using the witnesses own words is to offer uncontested evidence before opening statement. Trial judges generally appreciate this because it shows professionalism, saves time in front of the jury. Then you don't have once the uncontested evidence is admitted, you no longer have to worry about laying foundation for it. And then the evidence is available for opening statement and thereafter. So back to my technique of active juxtaposition as much as I can. I don't want to spend time laying foundation and asking those extra questions in front of the jury. I want to go right to the evidence. So Proposition X has been elicited from a witness, and I want to juxtapose the opposing evidence. I want to refer right to it. And if it's been admitted, all the faster, all the better. Another way to use the witnesses own words to help tell the story is to remember to let the witness be a giver. Every friendly witness called on direct should give something to the Factfinder. Again, maybe several things, usually not ten things. So something, maybe a few things. It might be a lesson in engineering. It might be. Here's a photo that I took of a fishing trip with the injured plaintiff that we went on a month before their injury, and it shows how happy they were, how they could climb in and out of the boat, how they were able to help portage the canoe that we used, whatever it may be. Let the friendly witness come up and give something to the members of the jury that helps the story. Often it's good if that something is something tangible like a photo. If one of the issues in the case is that my client is a chef or a cook and their ability to be a chef or a cook is hindered by a shoulder injury. Let's say I may call someone who has worked with them in the kitchen and bring, you know, a couple of pots and pans and let them quickly demonstrate how it's helpful to have both hands at the ready over the course of hours if they're doing it for work and how they make a certain dish, you know, just a little demonstration. Let that witness give something to the members of the jury. It makes it more memorable. It could just be also a fact or a, you know, a data point. But be very conscious of what it is that the witness is giving to the jury. And again, if it's a friendly witness, I want to remind the witness that they're going to do this. We're calling you to the stand because we hope that you can give the jury this image, this photo, this memory, this experience, because they don't have it. You have it and want to help you to share it with them so they understand the story of our client, of our side of the case. So help them visualize it. Tell this thing you're going to give them. Tell the story in vivid terms. We're going to show a picture or two and introduce those in evidence. And the witness will understand that because as as much as storytelling is a great method of persuasion, it's also a fun and natural thing for people to do. So when we let the witness who is friendly know that we want them to tell a story and give something to the jury, usually it's a way to make the witness comfortable. So some examples of this include letting the witness explain something they know well early in their testimony is X. You just told us you paint commercial buildings for a living. Have you ever fallen off a scaffold or a ladder? What was that like? How do you what do you do to keep that from happening again? Just something a little bit interesting about their background. Even if it's not directly relevant to the case, it gives the jury some insight into who this witness is and what they've been through. And something interesting that the jurors may remember about this witness, even though it's not quite on point with the case. Judge is not going to let you go on for even 20 minutes or half an hour with this, but a couple of minutes to tell a story, something interesting. I had a case where one of the issues was that firefighters had to come and rescue people from a stuck elevator that was stuck between floors and get people out of the elevator. And they were going to talk about how they did that. But when they took the stand, as I was introducing the the firefighter, I asked the firefighter whether it's true that they actually help rescue cats who climb up trees and that the firefighter told us not very often, but sometimes we do and ventured into a little story about how they did that. And it helped make the witness comfortable. It slightly amused the jurors. And I will tell you that then what the firefighter had to say was accepted by the jurors as a description of what happened when what happened was really a contested issue in the case. So even seemingly minor non-party witnesses need to be introduced and humanized for the finder of fact. And in the course of doing that, be aware of the words that they offer that we can use and how those words fit into our storyline. Set up the question you asked the witness by reference to evidence or testimony. So, for example, I could say, Mr. Witness, your neighbor, Mr. Jones, testified this morning that you were in good health last year. Is that accurate? Why or why not? So I've used the testimony of another witness, concisely stated as a predicate for my question to this witness. Ms.. Witness opposing counsel said an opening statement that you did not look for a job for six months. Is that true? Why or why not? Again, the using the words of the prior witness to set up the the predicate for the question helps us focus on what the new witness is going to say. Be conscious of spatial connections. When we are examining witnesses in the courtroom and even when we're not the one doing the questioning, be aware of space. So that means we can non-verbally reflect the witness. Be aware of that energy. You might think of the word energy in quotation marks, the mood, the effect, whatever word you want to use for this, but be aware of the sensory effects associated with physical movement, closeness, the pace, tone, and volume of your voice and the voice of a witness. So this is just a reminder that in calling words from the witness, it's not just words like printed on a piece of paper, black on white. You know, newspaper style. It is affected by the sensory effects of how those words are delivered. Where are you? Where's the witness? How fast are you talking? How fast is the witness talking? What's the volume? Do they appear upset? Where's the jury? Are they looking at me? Are they looking at you? Be aware of these things because it enhances the importance or unimportance that the jury is going to put on what the witness is saying. And if we're not the one asking the questions, still be aware that our own reaction and our reaction to what the witness is saying can influence how the jury hears us and look at how the jury is reacting to the witness that can help tell us whether they are having a positive or negative reaction to the jurors. One of the ways to use spatial awareness effectively with a witness in getting their own words is simply the concept of mirroring. That is, if the witness is saying something you like, something important. Mirror them physically. If they're turning their head toward the jury. Slightly turn your head toward the jury slightly like you're a mirror image. If they're slightly leaning forward, lean forward if you want them to lean forward. Lean forward a little bit. If they're reaching out, you might slightly reach out. Now, it doesn't mean literally mimic. So if they make a gesture, you have to mimic every other gesture that would look silly, but subtly. Use that space to mirror what they're non-verbally doing because it shows to the members of the jury that you are in unison with them and that what they're saying is important. What their words are saying matter to the case. Remember the language power of we and us. When you're examining witnesses in front of the jury say, you know, we need to know. We need to know what you saw in the dark alley that night. Witness. We have heard two conflicting versions of what the CEO did at that meeting. We need to know what really happened. Who's we? It's you and the jury and maybe the world, but certainly you and the jury. So it's coupling yourself and your client, the members of the jury, on an important question to get important information. Now, of course, you hope that you know the answer already because you're using this technique to really highlight and underscore the question and the answer. And that's the effect it's going to have for the jury. You use this formulation of a question. They're going to think this is something important. So you're kind of presenting it like we need to know like we're trying to find out. Hopefully you already know it's the jury that's going to find out. But using the Wii to couple yourself with the jury is an effective way to draw out and underscore the witnesses words for the members of the jury in a persuasive fashion. If possible when you use this tactic. Put the finder of fact between you and the witness. In other words, if I'm allowed to, I might amble over somewhere near the jury box to use this formulation of a question, to ask the question to the witness and might stand a little toward the back of the jury box. So the jury looks at me and I say, Witness, we need to know the answer to this question. Tell us the answer to this very important question. And the jury hears me say it. And then we, meaning the jury and I, we look toward the witness together, and then the witness delivers us the answer. And usually when we get the answer, the jury quickly turns back to us and turns back to us. Now, meaning me and or the questioner and gets our reaction. And if things are going swimmingly. That they're they're waiting for another similar question because now they're into it. Now we've used this technique of making this important. We're saying it's important. We're all joined together here. We're taking the lead from the members of the jury. This is a very effective technique. You can't overuse it. Couple times in a jury trial. But it's powerful and it accentuates how the words of the witness that come out using this technique are going to be really important in telling our story. In structuring an examination. Remember that to the jury, everything is new. So how does the new information are getting for the from the witness affect us? So try not to act like. You know, I knew it all along. If the witness is telling us something moving or emotional, be willing to accept and feel a little emotion, feel a little pathos. It's not something you've heard 15 times already. Maybe the jury feels pathos. You don't feel pathos. Act like it's, you know, feel the truthfully try to sincerely feel it. Something new. If we're in a deposition, not at trial, we're not going to be curious. And to be inquisitive in trial. Be open to new angles and be opportunistic. Just some aspects of examining witnesses that when their words come out, they could be a little bit different each time between the deposition and the trial. People are not word processors, so be willing to accept, you know, and be aware that the different words the witness uses might open something up new that you can use. In drawing out words from the witness, avoid demeanors and behaviors that alienate the audience. Don't roll your eyes. Don't take a dismissive posture. Don't turn your back to the jury or to the witness, anything like that that can be seen as disrespectful. Don't use that kind of like the hand gesture. That's poo poo. Um, anything dismissive. You might just know in your heart. We as the trial, we know in our heart that this witness for the other side is not telling the truth. We just know from experience that this opposing expert witness is a hired gun. And they'll say anything for a buck. You might know it. The jury doesn't know that. And the jury wants to respect each witness who takes the stand. The jury tends to identify with the witness who's there under examination or cross-examination. And they will work hard to harmonize what people come before them and tell them in good faith and they will not like it if you act in a dismissive manner, even non-verbally. Inappropriate affect. That just means, you know, be aware of how your reactions show the emotions that you might have. So if the witness is describing having come upon the scene of a tragic accident, that's not the time to make a funny joke or to find something amusing and amusing and laughing about it. Just be aware of those things when you're drawing out the words from the witness. Remembering that we are allowed to elicit helpful opinions even from lay witness witnesses, as long as the opinion is rationally based on the witnesses perception and helpful to understanding the witnesses testimony. It's not only experts who can express opinion testimony, lay witnesses can as well. And that often is a very helpful rule to keep in mind. So a witness who has seen a motor vehicle accident often can give a lay opinion as to the speed or whether the driver appeared to be acting cautiously or not cautiously, as long as the witness expresses that they were there and they've made observations that can give rise to a helpful thing. One of the key general ways that we group our understanding of how to use the words of the witness to tell the story is impeachment. Impeachment. A means to discredit the witness by showing their untruthful or their testimony otherwise lacks credibility. To impeach does not require showing that the person is dishonest, only that that person's testimony is wrong and shouldn't be given weight by the finder of fact. Impeachment is important. We should seek chances to impeach Plan on impeachment. I always in trial and surprised when the lawyer is examining a witness or cross-examining a witness more specifically, and they get an answer that they can prove is wrong. And the lawyer seems befuddled by the fact that they got an answer inconsistent with the trial testimony. And they might look around for something to impeach with. I think that's different from something you saw in a record or, hey, you know, second chair associate, do you have the deposition? I'm going to flip through this for a couple of minutes and look for something. Thought they said that was inconsistent with that answer. And it's almost like they're surprised that the witness gave contrary testimony. Instead, expect that the witnesses are going to give new testimony or contradictory testimony and take advantage of that. So form questions for cross-examination based on specific pages and lines in the witnesses deposition or witnesses statement or in the documents we found that contain the witnesses own words, whether it's articles or treatises or plans or notes or emails, whatever the case may be, use those statements to form questions so that when the witness inevitably deviates from what you have in front of you, you can quickly go to impeachment. You can quickly show that the words they've just stated on the witness stand are different from what they stated in the deposition. And note the Snapchat, the Facebook post, or whatever the case may be. Once again, it's a form of active juxtaposition that. Fires a bullet into the consciousness of the jury that they will register and done rapidly. Is much more effective than if you let it go while the witness is on the stand and then try the next day to put into evidence a document that's contradictory and then remind them and closing argument amongst 30 other things that you're bringing up that you remember on the third day the witness said this and then the next day brought in this document. Those things don't line up. Maybe they have that awareness or that consciousness for you, but it's a lot better to do it quickly. And remember that it's possible to impeach with materials other than the witness's own statements. One way to impeach is very simply this. The witness gives an answer that contradicts their deposition. Your Honor, may I approach the witness? You may or may approach the witness to impeach. You may witness. You gave a deposition in this case. You gave answers under oath in my office. The court reporter was present. I'm showing you the transcript of your deposition. Page X line Y. Please read along with me silently as read aloud. Read it, read it. Read it. Did I read that correctly? Yes, you did. That's what it says. Now the impeachment is done. Usually you don't need to ask any more questions to hammer home the impeachment, although sometimes you may want to do so. Uh, you might just let the impeachment hang in the air for a long moment. So the jury. Is able to digest what has just happened. This witness has told us something inaccurate or untrue under oath. And we know it's inaccurate or untrue because it contradicts what they said in a different setting. If you ask more questions after the impeachment, like now, do you admit that what you said the first time was wrong? You're opening the door for the witness to slide out of the contradiction. Well, it didn't quite mean it that way. I learned something new since then. You know, here's why my testimony is better now. They can still answer those questions if they're asked on redirect by your opposing counsel. But if they do it that way, it looks like more like they're making excuses that the opposing counsel is getting them to make excuses. Unless they've got a really good explanation, maybe they do, Then it's not that effective of an impeachment. But usually once you've gotten them to admit that the words you just read are their words and their words then contradict their words. Now on the stand, you're done with impeachment. Remember who the audience is. Is it a judge or a jury or an arbitrator? Sometimes that makes a difference. Um. Normally you don't have to impeach witnesses in a deposition. Often that can be a sign of an inexperienced litigator. When we see impeachment taking place in a deposition. Because what? Who are you trying to prove something to? But you might do it if the witness you think is going to be unavailable and won't be testifying at trial, then you might want to put the impeachment right on the record in the deposition. You might impeach a witness in deposition if it can impact the case in such a way. Maybe you're trying to settle the case and you're showing your opponent that this witness's testimony is weak. You may want to test how the impeachment goes if you're not sure if it's directly impeaching. But be aware that once you impeach in a deposition, especially if it's effective, the witness is going to think really hard about a way to get out of it. That's happened to me more times than I can recall or thought. The impeachment was so locked in rock solid, I might as well display it. It's going to be effective for me to do it. And then come trial. The witness, especially a hired gun expert, has thought of a way to spin it that takes away some of the that blunts some of the impact, some of the methods of impeachment that you may consider using include identifying your anchors, practicing with your anchors, keeping your anchors at hand, and introducing your anchors early in the trial. So this is impeachment with the anchors. So it's a positive fact or a positive document for our case that's very clear and strong, usually uncontestable. So if nothing else, if the witness on the stand says something you don't like, call them back to the anchor. Remember, there's this anchor, or were you even aware of this anchor, this document, this fact? We're even aware of this. If they say yes, you know, then they're accepting something that by definition is good for you. It's your anchor. If they say no, even better, because they weren't aware of this positive fact in this great document for you. So just asking them, were you aware of this anchor, this positive piece of information that favors my side? Tends to impeach. Other methods of impeachment exist. You think about showing that the witness is biased, that they have a personal interest in the case, have a relationship with a party to the case. I try to explore in jury selection how the jurors or members of the jury are going to react to biases that are coming into play in the case, how that might affect them. Um, thinking. About bias evidence. Who stands to benefit from the outcome of the case or the testimony? So someone who is a corporate executive want to spend some time impeaching their credibility by showing they work for the defendant company. That part of the bad thing that happened was on their watch that their job and will be positively affected if the corporation wins the case show, you know, display that bias. It may be obvious to us, it may even be obvious to some jurors, but often it's not obvious to some jurors. And even where it's obvious, if you do it skillfully, it helps you show that you're in control in front of the jurors. And that tends to be an effective way to then use the words that will come from the witness to help tell your story. Remember that witnesses often wonder if the proceedings are about them. Even some hired experts if they haven't testified a lot. Seem to think that this the case is about them and not about the dispute between the litigants. So you can knowing that you can think of what is the witness worried about in terms of the outcome. How will that how could that help shape their outlook on the facts? What are they concerned about? And think whether that shows you a basis for some questions you might ask and of course, follow the money. Does the witness have any financial or monetary incentive to say what they're going to say if you don't like what they're going to say? Another method of impeachment is just to show that the witness has a faulty memory or perception. So of course, for foundation generally, a witness must have personal knowledge to be able to relate in testimony what their observations are. I usually witnesses will acknowledge that memory fades over time. They will often acknowledge that those in a reasonably better position to know answers to questions. Should be deferred to. So, you know witness you saw your an expert you saw the injured plaintiff on a one time basis for a second opinion. You know that the treating doctor has seen them ten times. You would defer to the treating doctor for their observations of how their condition has changed over time. A lot of times a witness will accept that. And you can ask the witness to acknowledge things they do not know because they were not there. They did not hear it or see it. And this again, gets us back to use of the anchor. So if the witness is giving testimony you don't like, you can remind them that they were not aware of the key fact that's in your favor, your anchor, because they don't know it. They weren't there. They didn't hear it, see it, or engage in the production of the document that forms the anchor. We have now talked about ways in which to use impeachment and testimony and formation of questions to elicit words from the witness to help tell our story. And when the words come from the own mouth of the opposing side or come from the words of the witness on the stand, even favorable witnesses, we can build those words into our theme, into our fantasy theme and into our story. That ultimately is how persuasion works effectively in the trial process. Again, I am Tracy Tool. Thank you very much for your time and attention here in this webinar today.

Presenter(s)

TT
Tracy Tool
Partner
Bye, Goff & Rohde Ltd.

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