Archive for the ‘Client Psychology’ Category

Jury Decision – A Private Lie?

Tuesday, April 23rd, 2013

Jury Decision - A Private Lie?




Jason Alexander as George Costanza, Seinfeld TV Series


"It isn't a lie if you believe it," says George Costanza, the preternaturally scheming character in the Seinfeld series.


Okay. So then, if you know it isn't true, it is a lie, right?


Do you have any legal right to protect a false representation of yourself, if you thought you were paying an entity to keep it a secret?


What if it's a lie that you have nurtured, like an actor's stage name?


Does an actor have a right to privacy to protect a lie that the actor created?


If an entity exposes the actor's self-devised lie, can that entity be at fault for violation of privacy, defamation or libel?


What if the entity had been hired solely for the purpose of promoting the actor and the actor believes she was undermined?


Can the entity be required to promote misinformation?


Can there be damages connected to a conceit that presupposes movie industry age discrimination from revelation of an actual age closeted behind a stage age?


Interesting case-read on...


April 11, 2013

Associated Press and KOMO Staff,



Huong Hoang


Seattle jury rejects claim of actress who sued Movie Database


SEATTLE (AP) - A federal jury in Seattle on Thursday rejected a claim brought by a little-known actress who first lied about how old she was on the popular Internet Movie Database, then sued the company when it published her true age.

Huong Hoang goes by the stage name Junie Hoang and has appeared in such films as "Gingerdead Man 3: Saturday Night Cleaver" and "Hoodrats 2: Hoodrat Warriors."

Her lawsuit generated a lot of media attention when she filed it - anonymously, at first - in 2011. She said she intended for her case to highlight online privacy as well as age discrimination in Hollywood, and she initially sought $1 million in damages.


[continue by following the link below...]


Seattle jury rejects claim of actress... 




Alan J. Cohen, Ph.D.


Advanced Witness Preparation– Part 2

Monday, January 14th, 2013

Advanced Witness Preparation
Challenging Personality Traits

Part 2
Managing Challenging Personality Traits

In a recent post, "Part 1, Identifying Challenging Personality Traits," which you can find at this website-blog,  I wrote about certain types of client characterological issues that are often exacerbated by the adversarial nature of litigation and may undermine successful settlement or trial outcome. While my title refers to Witness Preparation, the theme of this post is managing the client with Challenging Personality Traits (the CPT client) throughout your attorney-client relationship. If the attorney's relationship with the CPT client breaks down or becomes adversarial, successful witness preparation will not occur.

I discussed the work of Bill Eddy, an attorney who also has a social work background, has addressed the subject of "High Conflict" clients very thoroughly, and recommended that you pick up one or more of his books.

As in my Part 1 posting, I have incorporated several of Mr. Eddy's conceptualizations in this post.


 In review of the Part 1 post, Mr. Eddy focuses primarily on High Conflict Personality traits associated with narcissistic personality, borderline personality, paranoid personality, histrionic personality and antisocial personality.

Why do these clients behave this way?

Persons who express these traits have difficulty managing their feelings and emotional responses. Okay, what does this mean? In a broad brushstroke, the animal nervous system can be thought up as a survival preservation system. Events that trigger threats to survival result in fright, flight, or fight responses. During human maturation, especially during teenage years, we are supposed to learn to discern the difference between various types and levels of threat to survival and develop appropriate coping skills. Achieving these coping skills define what we refer to as "maturity." In a nutshell, failure to successfully manage our emotional response is the result of experiencing an event as a greater threat to survival than it really is.

Failure to react with an emotionally appropriate response is read as "immaturity." Typically, there is more to the problem than just failures in social learning during adolescence. Failure to develop coping skills or maintain control over appropriate emotional responses is probably the result of an amalgam of factors that may be in part biological, part cultural, part absence of critical emotional experiences during early developmental stages and/or part trauma and abuse.

One neuro-psychological explanation is that this amalgam of factors causes a disruption in the ability of the brain to coordinate messages across the corpus callosum from the left (thinking) brain to the right (emotional) brain.

I have heard that when the next Psychiatric Diagnostic and Statistical Manual (DSM-V) is published in May 2013, personality disorders, such as narcissistic personality, borderline personality, paranoid personality, histrionic personality and antisocial personality, will be dropped as diagnostic "disorders." This makes sense to me as many of the personality traits associated with these diagnoses overlap from one disorder to another, and probably represent a common etiology.

People who exemplify these character traits evoke similar reactions from others, acting out in self-centered, manipulative ways without sensitivity to others.

Expect an entourage of other difficult persons. 

To make matters worse, people with these traits tend to alienate others, and those who are not alienated by them often have adapted to their maladaptation-- out of fear, financial necessity or relational complementarity. So, when you have a client with challenging personality traits, that person is often accompanied by an entourage of others who also see the world in distorted ways, and will not be much help to you in correcting unrealistic thinking and inappropriate behavior.

You cannot be their psychotherapist.

Persons with Challenging Personality Traits are highly resistant to change. You WILL NOT be able to change the CPT client within the structure of the attorney-client relationship. You must develop skills to manage their "volatility" and tendency to "act out" towards you and your staff, opposing counsel and clients, and the Court.

Bill Eddy describes the importance of listening to the CPT client with receptive behaviors of Empathy, Attention and Respect (giving the client your "EAR"), and then responding with a set of active behaviors that are Brief, Informative, Friendly but Firm ("BIFF").

Here are some things to remember and do when working with clients who have Challenging Personality Traits.

1. It's not unique in relation to you-- The behavior of the CPT client is not "personal" to you or anyone else. You may feel attacked, criticized or undermined by the CPT client. It's not personal; this is how this client behaves in all relationships when under perceived threat. When you feel the client is being provocative, you must not react angrily, punitively or with threats of abandoning the client. You may feel that the CPT client is behaving "childishly," but it is important not to respond in a parental or condescending way.

2. Expect unrealistic thinking-- Expect the CPT client to communicate content in illogical, naive, distorted or unrealistic ways.

While it is important for you to be able to paraphrase and reflect back your understanding of what the CPT client is saying, you must do so without "agreeing" with distorted thinking, desire for revenge (often the CPT's understanding of "justice") or unrealistic demands. It is important that once you recognize a CPT client, you maintain a somewhat higher degree of skepticism with regard to the credibility of what the client is presenting.

3. Maintain professional distance-- Although important in working with all clients, it is particularly important to maintain professional boundaries and distance when working with the CPT client. The CPT client may behave as if "entitled" to special treatment from you and your staff, and when it does not occur, the CPT client may feel rejected, abandoned or disrespected. It is important from the outset to define and set limits describing how the professional attorney-client relationship will operate.

4. Don't attempt to placate, fix or rescue-- You will not be able to "fix" many of the complaints and demands made by the CPT client, or live up to the CPT client's fantasies and expectations for you to rescue the client's identification as the "victim." You must avoid becoming a participant in a persecutor (opposing party, counsel, or judge), victim (CPT client) and rescuer (attorney) triangular configuration; once you become part of that tableau, you may become the failed "rescuer" and just another "persecutor." Instead, it is important to discuss your inability to fix things by attributing your limitations to external forces and describing potential adverse consequences. As opposed to immediately saying, "I won't do that" or "You can't do that," say, "I am concerned that if we do what you have proposed it may result in the judge responding by..." or "I believe that if you bring up 'x' in your testimony, jurors (the judge) will see it as..."

5. Don't dash off emails-- With the CPT client it is important to be very careful with email and other communications. The CPT client is extremely sensitive to being "dissed." As Bill Eddy suggests, your responses should be brief and factually informative, friendly and firm (BIFF). It is important to avoid opinions of optimism or reassurance about things that you have no control over. Avoid words that have the goal of placating the CPT client. Read you email to yourself aloud before you click your mouse.

6. Give homework-- You may find that it is very helpful to give the CPT client "homework" to do between meetings based upon the individual's strengths and capabilities. Homework can be anything from the creation of a diary, to assembling any type of factual information relevant to the case. The task focus will assist you in managing your relationship with the CPT client over time because: (a) it involves the client in an activity that creates involvement, a sense of co-worker bonding and a feeling of usefulness in the litigation process; (b) it communicates respect for the client, while at the same time reduces the client's fear of abandonment; (c) it may to some extent reduce or distract the client from distorted thoughts and unrealistic expectations.

7. Ask for proposals-- When the CPT client demonstrates unrealistic expectations or makes unreasonable demands, ask the client to suggest a proposal or set of proposals in writing for you to think about. Unless you believe that the client may immediately act out (e.g. calling the opposing party or counsel etc.), tell the client that you want to take some time to think about the proposals. Then handle your response to the proposals by using the brief, informative, friendly, firm approach (BIFF) mentioned above.

8. Suggest mock juror research to provide an external opinion-When a CPT client rejects your use of an externalizing response (such as, "I am concerned that a jury will not value your case as highly as you believe), suggest mock juror research that can provide externalized input.

9. Do not act out yourself-It may be tempting, due to frustration or prior bad experiences with a CPT client, to try to significantly change the rules for representation of the CPT client. An alarm should go off in your head if you feel desperate to control the CPT client by creating a special contract in an attempt to limit your responsibilities or time commitments. You may inadvertently tread on client rights or other attorney ethical issues.

10. Witness Preparation-In my Part 1 post, I discussed that witness preparation flows from dealing with (a) client character issues to (b) case strategy content issues to (c) witness performance communication issues. Your successful management of the CPT client from the very beginning of the attorney-client relationship will have a huge impact on your ability to conduct successful witness preparation for that client.


Alan J. Cohen, Ph.D.

Advanced Witness Preparation — Part 1

Wednesday, December 5th, 2012


Advanced Witness Preparation

Challenging Personality Traits

Part 1

Identifying Challenging Personality Traits


Recently, I have sent a four segment series of posts regarding the basics of witness preparation, which you may also find at this web-blog.


These earlier posts dealt primarily with performance or communication type issues. In actual practice, however, performance is the last step of my approach to witness preparation. Hierarchically, before managing communication, the attorney should manage character and content issues.





(1) Manage Characterological Emotional-Behavioral Issues

(2) Manage Strategic Content

(3) Manage Performance Communication


In this post, I will just deal with identifying the characterological features of difficult to work with clients and witnesses. In a later post, I will recommend some ways to work with them.


Fields of Law with Higher Frequency of Challenging Clients

Litigants are prone to have some difficulties with emotional stability--some, a great deal more than others. For example, attorneys who work in criminal defense law, family law and plaintiff side personal injury law or employment law may experience a greater number of these clients.


Why do people behave this way?

While there are probably biological or neuro-psychological components, for the purposes of this discussion, let's just say that during childhood we all develop "skills" to regulate our emotions in response to actual or perceived threats to our well-being. Sometimes, these skills solve problems for us in the short term, but may create problems for us in the long term.


It is as if we learned to use a "hammer" to hit a nail in early life, it worked to some extent, and then we later saw future life problems as the same nail requiring the same hammer. Unfortunately the coping skills may now have become maladaptive.


During life most of us develop increased ability to raise the threshold at which we perceive threat, and the ability to use a wider range of skills to respond to and regulate intense emotions.


The challenging client, however, easily becomes emotionally overwhelmed, leading to a kind of me-centered desperation, losing perspective and understanding. This client may become a challenge to like and may become the object of your hate, anger or pity.  


A Challenge to Empathy

In order to work successfully with difficult, challenging personalities, you must first be capable of having empathy for these clients and not react with judgment, frustration, condescension or outright retaliatory anger. To say it a little differently, you need to make sure that you do not respond to the client's set of maladaptive responses with a set of your own.


Recognizing Emotional Instability

After spending some time with a challenging client, you may start to recognize that your client has strange reactions or behaviors; the behavior will tend to fall into two general categories:



These are clients who tend to become over-engaged and highly provocative, with a potential for impulsive acting out in anger towards opposing counsel/client as well as you.



Under-engaged, conflict averse and docile.

These are clients who tend to be under-engaged, conflict averse or docile, and may appear to care less about the litigation than you do.


Of the two groups, the High Conflict clients tend to be more dangerous to the overall litigation and to the attorney.


Bill Eddy, an attorney who also has a social work background, has addressed the subject of "High Conflict" clients very thoroughly, and I would recommend that you pick up one or more of his books. I heard about Mr. Eddy from an attorney who attended his CLE in Seattle and I have incorporated several of Mr. Eddy's conceptualizations in this post.



Almost everyone is familiar with psychiatric terminology related to dysfunctional personalities, such as narcissist, sociopath, paranoid, histrionic, borderline, avoidant, dependent and obsessive-compulsive.


A witness does not need to have a diagnosable character disorder to become a challenging person with whom to work.  


The difficulties may occur even when your witness just has some of the character traits of these disorders. Here is a description of challenging personality traits.  





Narcissistic Personality Traits are characterized primarily by arrogance, grandiosity, need for admiration, and lack of empathy. Narcissism occurs in a spectrum of severity, but the pathologically narcissistic tend to be extremely self-absorbed, intolerant of others' perspectives, insensitive to others' needs and indifferent to the effect of their own egocentric behavior. Think Stephen Colbert's TV character, Dr. House, Gordon Gecko, John Malkovich's character in Dangerous Liaisons, or Natalie Portman's mother in Black Swan.



Antisocial Personality Traits are characterized by a pervasive pattern of disregard for, and violation of, the rights of others that begins in childhood or early adolescence and continues into adulthood. They are liars and con artists, and may be truly dangerous. Antisocial traits tend to bracket irresponsibility, recklessness, irritability, aggressiveness and lack of remorse. Think Tony Soprano on the more violent end, and the main characters in Dirty, Rotten Scoundrels, or Paper Moon on the less violent end.



Paranoid Personality Traits are characterized by distrust and suspicion of others. They are prone to unjustified angry or aggressive outbursts when they perceive others as disloyal or deceitful to them (including you). They tend to come across as emotionally "cold" or excessively serious and calculating. Think Lisbeth Salander in the Girl with the Dragon Tattoo.



Borderline Personality Traits are characterized by dramatic and abrupt shifts in mood, impulsivity, poor self-image and tumultuous interpersonal relationships. Borderlines flip from idealization and devaluation; at the beginning you are God's gift to the world, then you are totally incompetent and an idiot. Borderlines are highly sensitive to rejection, and fear abandonment; perceived rejection by a significant other (including you) may result in suicide threats and attempts, including self-harmful acting out such as cutting or burning. Think Glen Close in Fatal Attraction, or Jennifer Jason Leigh in Single White Female.



Individuals with Histrionic Personality Traits exhibit a pervasive pattern of excessive emotionality and attempt to get attention in unusual ways, such as bizarre appearance or speech. With rapidly shifting, shallow emotions, histrionics can be extremely theatrical, and constantly need to be the center of attention. Think Blanche in Streetcar Named Desire or Scarlet O'Hara in Gone with the Wind.






Avoidant Personality Traits are characterized hypersensitivity to rejection leading to social anxiety and unwillingness to take social risks. Avoidant persons display a high level of social discomfort, timidity, fear of criticism, avoidance of activities that involve interpersonal contact. Think the Anthony Hopkins character in Remains of the Day.



Dependent Personality Traits are characterized by a pattern of needy and submissive behavior, and rely on others to make decisions for them. Dependent personalities require excessive reassurance and advice, and are extremely sensitive to criticism or disapproval. Think any over-idealizing indecisive character; in the movies, often the younger brother or sister who by the end of the film transitions into a more independent stage in life.



Obsessive-Compulsive Personality Traits are characterized by an over-determined focus on order and perfection that their lack of flexibility interferes with productivity and efficiency. They can also be workaholics, preferring the control of working alone, as they are afraid that work completed by others will not be done correctly. Think Jack Nicholson in As Good as It Gets.


Their Own Worst Enemy (and Yours)

Have you had the opportunity to work with clients with some of these personality traits? Then you know that they can be extremely challenging to manage during litigation.  


Failure to manage the working relationship with these clients early during the litigation process may undermine the outcome of their cases. Since it is difficult for anyone to learn new skills when emotionally out of control, witness preparation in the midst of emotional chaos is effectively doomed before it ever begins.  These clients are often their own worst enemy, and by extension, yours as well. 


In my next post, I will recommend some ways to manage clients with challenging character traits.



Alan J. Cohen Ph.D. LLC

Is your key witness really prepared for deposition? Part 4 of 4

Wednesday, November 7th, 2012

Part 4
Appropriate Attitude;

Being Spontaneous


Showing Appropriate Focus, Attitude and Demeanor


Explain that (even in video depositions) only verbal responses can be recorded as text, and it is much better to say "yes" or "no" rather than yeah or nah.



Instruct your key witness to sit with a slightly forward lean toward the examiner, with hands relaxed and overlapping on the table; the hands may clasp, but without the fingers interlaced (which can reveal white knuckles under stress).







The witness should maintain eye contact, which means generally allowing the eyes to fall on and move around the examiner's face; eye contact is not a stare-down contest. Bill Clinton is the master of eye contact. He relaxes and tilts his head slightly while listening, while being totally engaged and focused upon the interviewer.



Professionals and academics should use lay language. In a sense, using everyday language also applies to less educated witnesses who may unwittingly try to sound more sophisticated or erudite, but counter-intuitively end up sounding pretentious. Again, using Bill Clinton as a model, when Clinton answers questions, you can literally see his eyes momentarily cast slightly downward as he is translating and distilling a complex thought into everyday lay language.


Explain to the witness that it is a bad idea to try to hide or be evasive about information that opposing counsel is certain to expose anyway. This is difficult in content areas that the witness experiences as humiliating or shameful. You should attempt to draw out and discuss such content before the deposition, and reframe it into responses that reflect the spirit of "what's so" and "so what." The attempt to hide shameful information merely confirms to the listener that it is something "awful."


There are certain types of verbal tics that can be detrimental to testimony, and yet difficult to change, including "you know," "to tell you the truth," "honestly," "as a matter of fact," and so on.


It is critically important that the key witness stay calm (easy to say, hard to do) and recognize triggers to frustration and anger. Many people react with anger when they feel disrespected or falsely accused. By the time the case gets around to deposition, you should already be aware of triggers and tells of your witness' buttons. Anger is expressed in many more ways than just raising one's voice and name calling. Instruct your witness never to use cynicism or sarcasm or any other type of sparring or retaliatory response to the examiner. Along these lines, it is almost always an error for the witness to use humor, even self-deprecating humor, during a deposition; there are a hundred ways for humor to go sideways.


Sometimes, a witness may be overwhelmed with grief, pain or other emotions. Let your witness know that organic weeping is perfectly okay during deposition. If there is a need to take a break, take as long as may be required before getting back on the record. Crocodile tears are never okay.


Many witnesses enter into deposition with confusion of the role of the attorney and the role of the witness. As a result, some witnesses will jump from their role as fact journalist over to the role of attorney advocate, sending inappropriate editorial messages along with the content of testimony.


It is generally a good idea to train the witness to respond to any objection you make at the deposition by asking for the question to be repeated and take the time to think about why you may have objected.


Explain that while the witness may not ask for a break while a question is on the table, that frequent breaks are acceptable and provide some time to talk things over with you. Work the breaks. For witnesses with physical issues, the witness should be encouraged not to be bashful about asking to stand, stretch, drink water, eat, take meds, go to the bathroom, etc.


Being Spontaneous

It is a paradoxical and self-defeating instruction to tell anyone to "Be spontaneous!" Any behavior that follows that instruction is sure to be self-conscious. 





Relaxed spontaneity is a complex experience to bring about in others. Like teaching a child to ride a bike, the teacher should take a supportive and increasingly invisible role, while the child experiences enough safety to take a risk. The child discovers balance, without being taught balance. Being a good teacher often involves doing good deeds outside of the consciousness of the learner.


Some witnesses begin witness preparation with the notion that the attorney is going to tell them what to say at the deposition. The attorney may unwittingly confirm this notion when giving criticism or recommending definitive restatements during a witness' role-play. Correcting the witness can be a little tricky.


You're not paranoid if someone is really out to get you...


The problems stems from the malignant reality that it is not paranoid to believe that opposing counsel will try to trip up the witness, and that deposition testimony is in great part a game of defense. It is difficult for the witness to win extra points during deposition, but it is often possible to lose points.


When the attorney starts to look worried, the witness starts to get worried-- and wants to take more and more notes in the hopes of memorizing testimony and not screw up. This can become a vicious spiral downward in the witness preparation process.


Note taking during witness preparation should be discouraged when the witness is clearly doing it out of fear.


The ability to be spontaneous, in the moment and improvisational comes from confidence. The witness who tries to memorize and rehearse testimony is probably going to forget, become flustered and decompose during deposition.


At the root of the difficulties in key witness spontaneity is often witness confusion about the strategic or legal issues in the case. The attorney has not explained these issues to the witness or the ways in which the witness' testimony is going to fit into the overall case.


Here's the elusive obvious-if you can't effectively explain the strategic and legal issues of the case to your witness you are not going to be able to do it for the jury either. You have to be able to articulate the landmarks and landmines of the case to your witness. Your witness has to be able to understand your overall case from the jury's (or judge's, in a bench trial) point of view, and your witness has to understand how his/her testimony fits into the strategic narrative. Only then can your witness express answers to difficult questions spontaneously.


Future Posts


The attorney must be able to assess the intelligence, personality, emotional capabilities and other limitations of a witness in forming your expectations for that witness.


If your key witness is a lay expert such as a company engineer or CPA, you may need to teach this witness the additional skills required of an expert witness.


I will address these issues in future posts.



Alan J. Cohen Ph.D. LLC


Is your key witness really prepared for deposition? Part 3 of 4

Monday, October 15th, 2012

Part 3:
Leading Questions;
Staying Real 

Depo Document  

 Breaking Up a Pattern of Leading Questions

Telephone Sales ("yes-set"):

If you're like most people, you're paying more for heating your home than ever before, right?


If I had a way for you to take hundreds of dollars off your energy bill, you'd want to do that, right?


If you found out that the government is literally paying people hundreds of dollars to put solar energy panels on their roofs, you would probably want to get in on that, wouldn't you?


Opposing counsel may conduct a part of a deposition as a cross-examination-which can often sound like a telephone sales "yes-set."

Instruct your key witness to recognize the construction of a series of  questions leading to a "yes" or "no" answer. Your witness should be particularly keen to spotting a sequential string of "yes" or "no" questions.

Always and Never

Always is a word to seldom use...

Instruct your witness to avoid the use of "always" and "never" unless the response refers to a "routine habit" (one of the 3 R's of being truthful).

Teach your witness to break up the pace and rhythm of the leading questions by paraphrasing the question before offering a response. This will help your witness to qualify and limit the potential "all or none," "always or never" implications of a yes or no answer. It will also help your witness to discover hidden presumptions within the question that the witness may otherwise miss.

Q: "This isn't the first time you've attacked a doctor for bad treatment, is it?"

A: "This is the first time I have claimed negligent treatment by a physician." 

Reinforce that the witness is to answer the question asked and nothing more.

Explain that the witness should not feel obligated to fill silence spaces, or respond to expectant glances by the interrogating attorney.

Staying in Reality versus Speculating

While more than 80% of a deposition may be nothing more than "what's so... and so what," a good part of the rest of the deposition may ask the witness to take a trip to Fantasy Island.

Explain the difference between concrete fact and guessing, but don't believe for a minute that your witness is going to understand the difference.

The reason for this is that recollection is seldom complete and 100% certain, which leaves a lot of room for filling in the missing spaces with speculation. When opposing counsel uses a soft, friendly questioning approach, it can often disguise a beguiling invitation to engage in speculation.

It is not enough to tell your witness not to surmise, speculate, or participate in hypotheticals.

You must train your key witness to recognize and refuse invitations to make perceptual judgments of dates, time, size, distance, speed, etc.

Even if opposing counsel attempts to "bracket" a judgment, "well it wasn't 50 mph was it?" and "it wasn't 20 mph was it?" and so on, the witness must know how to navigate the response into a territory of reasonable inability to recall.

"I  know I was traveling within the speed limit."  -or-

" I routinely drive within the speed limit by checking for road signs and looking at my speedometer. I cannot tell you my exact speed and I will not guess." 

In most situations, the witness should decline drawing sketches which may imply scale, and not respond to sketches or non-records. If the record itself is a sketch (as in some police reports, etc.) the witness should decline to accept the scale that is presented in the sketch.  

Because memory is by its nature incomplete, not allowing opposing counsel to unreasonably pin down an answer becomes an important skill.

Every recollection has a "confidence" interval.  A person can be certain about a sequence of events, but not certain about exact timing. A driver may know a blue car was on the right, and a red car was on the left, but not know distances between them, or relative speeds of travel. 

Research has shown us that recollection can be manipulated and distorted through the process of suggestion. When a witness is shown parts of documents out of context or sequence, it may confuse or distort recollection.
When a "record" of a document exists, train your witness to ask for the complete document and not to examine a section of a document out of context.

In summary, there is a lot of Fantasy Island terrain, and if you do not train your witness to recognize it and steer clear, the witness is likely to travel there.

Alan J. Cohen Ph.D. LLC

Is your key witness really prepared for deposition? Part 2 of 4

Tuesday, October 9th, 2012

 Part 2:

Taking Turns;  

Being Brief  

 Witness, part 2

Taking Turns  


Explain to your key witness that a deposition is not like an ordinary conversation or interview. Testimony is a bit more like a tennis match in which you wait for the ball to come over the net, and then you hit it back. Another analogy is the visual image of catching a baseball and holding it momentarily before throwing it back.


In training this concept, sometimes it is helpful to use an object (like a coffee mug or cell phone) to create a speaking baton, and physically pass it back and forth during a role play demonstration to get this point across.


There is no set amount of pause time before answering, but if it helps the witness to visualize it, offer the image of looking both ways before stepping off the curb to cross the street.


You are not encouraging the witness to stall, but to take a moment to consider an answer before answering. Time is always on the side of the witness. When listening to music, no one doubles the speed to get to the end of the song as quickly as possible; we listen to the melody, tone and the lyrics. Hear the question. Understand the question. Ask to clarify an unclear question.


Answer me now...


In a tense exchange at the United Nations during the Cuban Missile Crisis (October 25, 1962) Adlai Stevenson forcefully asked the Soviet representative, Valerian Zorin, if his country was installing missiles in Cuba.


Stevenson was so wired that he raised his voice and demanded, "Don't wait for the translation, answer 'yes' or 'no'!"



Likewise, instruct the witness that you will object if opposing counsel attempts to trample on an answer, coerce or pressure an answer.


This is a good time in the training to explain the purpose of your objections that will occur from time to time at the juncture of the bounce-pause following the question.


Teach your witness that every objection is a signal to ask to have the question repeated.

Being Brief

Old joke.

A lawyer asks a witness, "What is your date of birth Mr. Jones?"

The witness responds, "June 5."

The lawyer says, "No, what year?"

The witness responds, "Every year."


You want your witness to be brief and limited in response, within reason.


Instruct the witness to answer only the question that is asked, and nothing more. Don't try to read the mind of the examiner, and don't anticipate that you will save time, hassle or control the examination by saying more than the minimal amount necessary. Don't volunteer anything. Don't fill in for the examiner's pregnant pauses or expectant glances.


I would guess that 80% or more of the questions during a deposition beget an answer that I would characterize as, "what's so," and also, "so what."


In other words, most answers are merely going to be undisputed facts that do not merit concern, resistance or haggling. A minority of questions are going to provide an opportunity for the witness to reach a landmark fact or theme, or require maneuvering to avoid an opposition landmine. 


It takes very little energy for the witness to allow the examiner to lead the dance through the "what's so/so what" questions.  The witness posture is one of relaxed vigilance, answering each question with a brief, limited, concrete one sentence response that begs the next limited question.  The witness must patiently wait for opposition counsel's transition to the landmine subject content.



It is sometimes challenging, but still important, to give a brief, limited answer to a landmine question...

Landmine questions are often variations on "what do/did you know?" and "when did you know it?"  


The successful witness must have the capacity to understand not only case strategy, but also the subtleties of perceptual experience, personal meaning and the evolution of personal understanding over time.  If the witness is not capable of parsing "what do/did you know?" and "when did you know it?" there is probably going to be trouble.


Landmine questions require a brief, limited response that is also going to be a qualified response.  Opposing counsel asks, "When did you first become aware that you had this unusual mole in your armpit?"  "How long did you wait before making appointment to look into it?" "Prior to that appointment with Dr. Jones when did you previously see her?" "Did Dr. Jones tell you to come back if it changed?" "When did you first notice that it changed?" Perception, meaning, time frame, understanding over time. Witness testimony about these "facts" must embrace both the plaintiff and defense case strategies and attempt to reach a landmark without falling onto a landmine.  


We know from the research regarding eyewitness testimony that perception is incomplete during encoding and that memory is plastic over time. There is a certain reality to the notion that while we may be "sure" about our "certainty" it doesn't mean there is anything other than personal truth to it. To make matters more difficult, we are often not even sure of our certainty.  


Opposing counsel attempts to manipulate and take advantage of these phenomena, first by creating the expectation that the witness should know the exact answer, as if the witness walks around with a camcorder running to a gazillion gigabyte hard drive, and then trying to pin the witness down to a hard and fast appraisal.  


The attorney must have a good grasp on the relative importance of the impression of testimony in contrast to the importance of individual facts and help the witness make a landmark impression within the limits of what is knowable. 


Part 3 will address how the witness can deal with some of the techniques opposing counsel uses to derail testimony including: a "yes set" of leading questions, "bracketing" perceptions of time, space and speed; and inviting speculation. 


Next in Part 3:

How do you train your key witness to recognize opposing counsel's ploys to undermine credibility?  



Alan J. Cohen Ph.D. LLC

Is your key witness really prepared for deposition? Part 1 of 4

Wednesday, September 26th, 2012

Part 1:




grroupwitnessI started out to write a one page post with a title like top ten tips for witness preparation. But, it ended up expanding, so I am going to send this out as a series of 4 posts exploring the very basics of witness preparation--what one of my clients calls testimony 101.


In over 18 years as a trial consultant I have worked with scores of attorneys in preparation of their key witnesses. Preparing the key witness is an amalgam of teaching legal case strategy and tactical communication skills using role play practice under "game-like" conditions.


Time and Patience


Are you spending enough time with your key witness?

Every legal case has at least one "key" witness. Almost all important evidence has to be Sherpa-carried-in by witnesses. Given the significance of key witnesses to legal cases, it is somewhat extraordinary that so many attorneys pay so little attention to the providing key witnesses with the skills to carry-in the facts.


To make an analogy, a fashion designer expends tremendous creative talent, energy and money to bring designs to fashion show "trials" where the goods are going to be judged by the jurors (critics and buyers) who matter. It's hard to imagine a designer giving an attractive amateur with no experience or skills an hour of instruction on how to walk down a runway and expecting to get an effective performance.


Yet, many attorneys do little more that give the "key" witness a somewhat desultory review of the case along with spoken instructions of what to do and not do during testimony. The attorney talks "at" the witness, and the witness performs the same nodding gesture you typically see from the bobble-head dog in the rear window of the car ahead of you.


After you have put scores of hours into working up a case, it is mistake to think that an effective key witness preparation can be accomplished in a one or two hour session. The most common error that attorneys make is the assumption that what they tell the witness is actually being understood by the witness. If you have not seen the witness actually perform the skill a few times during role-play simulation, you should assume that the witness has not learned the skill.


Key witnesses come in all flavors of competencies to grasp strategy and develop skills, just as attorneys have different abilities and temperaments needed to teach and coach effectively. If you have a sense that you do not have the skills, time or patience to do prepare your key witness, reach out for expert professional assistance.


In this and subsequent posts, I am going to review the most basic types of instruction that attorneys should provide to key witnesses. This instruction must be followed with role play simulation to demonstrate skill integration.


Part 1:

Getting oriented



Part 2:

Taking Turns

Being Brief


Part 3:

Leading Questions

Staying in Reality


Part 4:

Showing Appropriate Attitude

Being Spontaneous


These posts will describe the necessary first steps, but it is far from sufficient. If you don't have a checklist of skills for your witnesses, this series of posts will give you a good start.


Getting Your Key Witness Oriented


High school teacher tells class:

The Shah of Iran was "deposed" in 1979.

Attorney tells witness:

You are going to be "deposed" in October.


The word deposition can sound pretty frightening to the non-lawyer. The process of deposition requires a thorough explanation.


Begin by explaining the entire mechanics of the deposition, creating a visual picture (with diagrams if necessary) of the entire sequence of events from start to finish.


Assure the witness that you will meet beforehand or that you will be at the deposition ahead of the witness. Explain the context of the deposition-the location, the configuration of the room, who will be there (attorney, opposing counsel and court reporter... support staff for attorneys), where everyone will be seated, the swearing in, the amount of time you anticipate the session it will take, the opportunity for regular bathroom breaks and other comfort concerns.


Explain that the goals of opposing counsel at deposition are both benign and malignant. The benign purpose is to provide opposing counsel with the opportunity to learn the extent and quality of the facts the key witness brings to the advocacy of the matter. The malignant purpose is that opposing counsel is there to minimize and/or undermine the impact of facts adverse to the other side's case.


Hiding the malignant purpose of deposition is not a "don't tell the children" option for the attorney. The witness will need to learn some skills for self-protection. The witness is going to feel anxiety about being the prey in a litigation safari.


Therefore, witness anxiety must be anticipated and managed. It is a fact that the more anxious a person is, the less likely that person will be capable of absorbing and retaining new skills. It is important to introduce the stresses of the deposition room into the training process in a step by step manner so that the witness develops an ability to contain anxiety. Practicing skills completely outside the deposition-like game day context of stress of anxiety is not sufficient preparation for the main event.


The first step in orienting a key witness is to ask, "What are your concerns about your deposition (or trial) testimony?" Write down each and every concern. When you have exhausted all the concerns, read them back and provide reassurance that during the preparation process you will address each of the witness' concerns. Explain that you will help the witness understand which facts are most important to the case (the landmarks), and teach skills to address the ways in which opposing counsel may try to undermine the impact of these landmark facts (the landmines).



Your spouse: What hotel did we stay at in Chicago two years ago?

You: Huh?


The elusive obvious about the role of memory in testimony is that all questions ask the witness for recollection of something.


Every response the witness will give will in some way slice and dice a particular recollection into extent of knowledge and degree of certainty.


Instruct your witness that the most critical component of testimony is consistently telling the truth, and that ALL truthful responses fall into three categories-the three R's of being truthful: (1) I can RECALL it; (2) I can't recall it, but it's in a written RECORD; or (3) I can't recall it, but it's my ROUTINE.


Almost all the time spent in witness preparation has to do with helping the witness gain confidence and skill related to parsing a response into one of these categories, and/or qualifying the response according to extent of knowledge and degree of certainty.


Often, people are not 100%. Instruct the witness to qualify certainty of some answers with introductory phrases such as, "to the best of my recollection," "it is my best recollection," "it is my current collection," "I'm not completely certain but it is my recollection," or use appropriate qualifying words such as "about," "approximately" and so on.


The fallback is for the witness to admit lack of recollection or knowledge, and/or qualify the response according to a possible record or routine.


"I have no way of knowing that because I don't have first-hand experience of that."


"At this point in time, I don't have a clear recollection of that."


"I can't tell you exactly when it happened, I can only tell you the order in which it happened."


"I don't remember exactly what I earned last year, but I believe you have my tax return (record).


"I can't tell you exactly what the wording of my job description included, but I am sure a copy of it (record) is in the HR office."


"I don't have a clear recollection of putting on my seatbelt, but I routinely wear my seatbelt. There is a bell that will sound if a seatbelt is not buckled, and there was no bell."


"I don't remember what I fed the children that night, but I know I fed them. We routinely eat at 6:00PM."


All the tips that follow in subsequent posts merely help the witness stay in charge parsing responses into the three R's of being truthful and a clear articulation of extent of knowledge and degree of certainty.


Next in Part 2:

How do you train your key witness in the discipline of "taking turns" and "being brief"?



Alan J. Cohen Ph.D. LLC