Persuasive Litigator

Diagnose Your Difficult Witness

By Dr. Ken Broda-Bahm -

 
In the pivotal scene of “My Cousin Vinnie," a movie beloved by those who follow legal persuasion, the defense attorney, played by Joe Pesci, asks the judge permission to treat his now estranged girlfriend as a hostile witness.  This is a request that the judge, with a knowing look, quickly grants.   The scene provides an important reminder that even when a witness might formally be on your side, there could be one or more dynamics at work making your own witness "hostile" to your interests. 

I was recently asked by a legal team faced with the task of defending the depositions of a large number of witnesses how to handle difficult witnesses who could not, or would not, answer questions with the sensitivity or strategic sense that a situation demands.  Such a witness may be prone to emphasize dangerous aspects of testimony even after being clearly shown by counsel why it is dangerous.  As I've written before, woodshedding the witness with strong "say this..." instructions is not the answer, for reasons both practical and ethical.  Instead, the first step in preparing the marginal or reluctant witness is diagnosis:  It matters why the witness is not getting the message.  There are a few different possibilities:

Guess You Had to be There (Prefer Present Witnesses Over Absent Ones)

By Dr. Ken Broda-Bahm -
The recent trial involved two New York City police officers accused of raping a fashion executive, after helping her out of a taxi at the end of a night of drinking.  Without physical evidence (the department's search of the apartment yielded nothing, and the accuser herself had showered), the case depended on the credibility of testimony.  A key moment came when earlier grand jury statements were entered into the record, as John Eligon of The New York Times describes the scene: 

To spectators in the Manhattan courtroom, it was a mundane moment:  a court stenographer reading in a monotone voice the testimony of a woman who said she was raped by a police officer.

Later, in a verdict prompting local outrage, the jury acquitted the two officers, despite security cameras showing that the officers had visited the woman's apartment three more times during the night, and despite one of the officer's admission on tape that he had sexual contact with the woman - and remember, she was so intoxicated she could not get out of a cab on her own.  So, why the acquittal?  According to one of the jurors, it came down to the delivery mode of this critical testimony. 

Keep Your Witness Out of the Woodshed

By Dr. Ken Broda-Bahm -

 
The term "woodshedding" as applied to a witness has a colorful history, starting with the notoriety of a small structure just outside the colonial courthouse in White Plains, New York, where attorneys would meet with witnesses just before coming in to court.  As used today, "woodshedding" basically means telling witnesses, fact or expert, exactly what to say and exerting enough personal control over the witnesses to make sure that they say it.  It is a bad idea for several reasons ranging from ethical, to practical, to persuasive.   While most attorneys will avoid the absolute extreme of witness ventriloquism, it is best to think of a continuum with "just tell the truth," on one end, and "repeat after me" on the other.   While members of the public, including jurors, might wish for all witnesses to be on the former end of the scale, that leaves out several important and meaningful components of testimony.  Litigators and other students of communication know that within the range of truthful testimony, there are better and worse ways to explain, more and less effective ways to give and withhold emphasis, and persuasive and unpersuasive ways to simply clothe ideas in words.  So in all of those areas, "just tell the truth," isn't enough help.  

But the other end of the spectrum, where truthfully more than a few attorneys live, isn't the best answer either.  The problem with an overly heavy hand in witness control, beyond suborning perjury in the worst case, is that you are draining credibility from your witness.  You may gain predictability over what your witness says, but only at the cost of your witness feeling and acting less confident and less believable.   And an effective cross can quite often expose and undermine even the most extensively woodshedded witness.  

Show, Don't Just Tell: Part 2, Comprehension (Persuasion Strategies Visual Persuasion Study)

By Dr. Ken Broda-Bahm -

 
When we think of great attorneys, the skills that we most often cherish are persuasion and logic -- the power to get a judge or jury to think and to do what you want.  But what about the ability to inform, to explain, to simply make something clear?   An effective teacher can be more trusted, and ultimately more effective, than even an attorney with a full briefcase of rhetorical technique.  After all, if you can get your fact-finders to understand the critical point from your perspective, then you are more than half-way to persuading them. 

It is in that context that we focus on the second part of our series on visual persuasion, reporting the results of a large scale (1,375 mock jurors) study of the effectiveness of different forms of demonstrative exhibit use in litigation.  In this post, we focus specifically on the role of visuals in building comprehension.   The finding?  Good visuals help teach the case, but the best visual teacher lies not in the occasional use of graphics, but in an immersion approach, with an attorney or witness using a continuous graphic presentation (like a well-designed PowerPoint deck) to accompany their verbal explanations.

Become a Two Minute Expert: Robert Reich Explains What's Wrong With the Economy

By Dr. Ken Broda-Bahm -

 

We have all heard of the "One-Minute Manager" capable of bottom-lining any executive situation and resolving it with speed and efficiency.  But brevity can be the soul of wit in expert testimony as well.  In a short YouTube clip that is currently making the rounds, Robert Reich, the University of California economist who served as Clinton’s Labor secretary, undertakes to explain what is wrong with the U.S. economy in two minutes and fifteen seconds, and does a pretty good job.

Your own reaction to the content Reich’s analysis could serve as a pretty effective litmus test of your political persuasion, but my point is to emphasize the rhetorical style rather than the politics.  By breaking the message down to its most simple elements, and explaining it in ways that are accessible, structured, and visual, the brief clip includes some lessons that expert witnesses should take to heart.