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Knowing When to Eat Crow: Apologies in Litigation

May 5th, 2018|

Bad facts exist in every case. Particularly in this day and age when everything electronic has a footprint, a cringe-worthy document is bound to pop up. A client attorney of ours once referred to email as “the cockroaches of litigation” – they’re lurking in every case. So if you can’t avoid bad facts, what do you do about them? Use them to your advantage. Sometimes falling on your sword will go a long way to gain credibility with the jurors. There is certainly a fine line to walk when it comes to apologizing in a legal setting. Apologies can backfire

Witness Testimony as “Conversation with Forethought???

April 21st, 2018|

One of the most difficult challenges in preparing a witness for trial or deposition testimony is helping them understand the unique setting that is witness testimony.  It is unlike almost any other communication event. The question-and-answer format provides a certain amount of control to the questioner, making it a more one-sided event than many other settings. The obligation to respond to every appropriately made question and the inability to ask questions in return (save for a request for clarification) creates unique challenges for witnesses. Witnesses also have to be reminded that this is not like a lunchtime chat with friends

Stop Telling the Judge What He or She Cannot Do!

April 7th, 2018|

I was a member of the graduate student admissions committee at the UW Communication Department, and we were meeting to rate and rank applications. There is no need to go into all the details, but as we were moving around the applicant “cards,” with their names and summaries of the qualities – stacking, ordering, and reordering – the process was moving pretty fast. I called for a halt, trying to assess the latest moves that were made. I was uncomfortable with it, but was trying to understand why. The Chair grew impatient and said “you have to give me an

Confidence in the Courtroom

January 20th, 2018|

It’s not about what you say, but how you say it. Confidence is king. Fake it ‘til you make it. Across all arenas, confidence leads to more opportunities and credibility amongst peers. The courtroom is no exception, and confidence impacts jurors, witnesses, and attorneys within this context. Researchers have long been interested in leadership characteristics within jury deliberations. One fascinating study looked at which jurors were most likely to change their minds during deliberations. One would expect (or at least hope) to find that those with the most accurate memory would be least likely to change their minds, but that

The Drama of Persuasion: Story-Telling and Narrative Framing

January 6th, 2018|

One of the most interesting components of facilitating a mock trial is seeing how jurors actually reason during deliberations. Most jurors have no training in formal logic or argumentation or in the fields in which the trial evidence is being presented (law, medicine, intellectual property, workplace safety, etc.), so they are unfamiliar with the criteria that would be used by experts in these fields. The specific jury instructions have yet to be provided, and even if they had, jurors often have a hard time following the rules as given. This is not a totally unique situation for most people, as

Jury Selection: Logistics

December 9th, 2017|

So often we write about the social science and theory behind sound jury selection. But there is one element – not sufficient alone, yet necessary to a successful jury selection – that goes unnoted. It is jury selection logistics, the coordination of processes, people, information collection, and facilitation of appropriate decision-making. To oversimplify, jury selection is a critical process whereby a trial advocate and her team are identifying jurors’ experiences and attitudes in order to determine if they have a, or a series of, pre-dispositions that increase the chances that they will be resistant to the case story, themes, evidence, or witnesses. In the

Preparing International Witnesses for Trial

November 25th, 2017|

Under the best of conditions, preparing a non-expert witness to testify at trial is a critical component of an attorney’s preparation efforts. It is a challenging situation for someone with little or no experience in the legal system to take the stand in a courtroom and answer questions from an attorney who is far more experienced in this situation. There are a number of strategies that can be used to get a typical witness ready for trial. But witnesses who are from another country and do not speak English as their first language present a unique set of challenges when

Not Even the Best Presenters Should Wing It: Tips for Getting Prepared for Your Next Speech

November 11th, 2017|

As a Trial Consultant working with lawyers and people in the litigation field across the country, I’ve noticed over the years that one of the “elephants in the room” is that when it comes to speech making, we could stand to practice more. Speaking, like writing, is a skill improved by performance and feedback. So why do so many experienced trial lawyers, time after time, show up to deliver an opening statement that sounds like it was put together the night before? Sure, some of them, maybe many of them, were actually put together the night before but, why? We

Taylor Swift Models the Art of Powerful Testimony

October 28th, 2017|

  Taylor Swift did not mince words when she testified in August against DJ David Mueller for allegedly groping her during a photo shoot. During her testimony, she took every opportunity to say Mr. Mueller “grabbed my ass,” artfully incorporating this phrase regardless of the question from opposing counsel. This was her “safe harbor,” the place she could go when the questions were difficult. When opposing counsel attempted to challenge her testimony and her memory of the events from that night, she unequivocally stated her truth. This is what jurors surely remembered – she was unwavering on the stand, and

Public Debate about the Trump Investigation, Juror Deliberation, and Closing Arguments

September 9th, 2017|

This is peril. Not the kind of “mortal peril” the young Weasley children faced from time to time, but the kind of client relations peril that comes with wading, even ever so slightly, into one of the most polarizing issues, at one of the most polarizing political periods in our society. So, I plan to be delicate, avoiding opinion about the process or outcome of the investigations of possible collusion between the Trump campaign and Russian intelligence. What I want to do is focus on the nature of “evidence” and “proof,” pointing out the use and misuse of the concepts