Source of article The Advantage Blog - Tsongas Litigation Consulting.
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 in the end, was awarded the total amount of damages she requested – a symbolic $1.
Whether or not Taylor Swift discussed this use of words specifically with her attorney is unknown. However, this is precisely the way themes and language can be used by witnesses when testifying in trial to ensure that the message sticks. Her message was clear, unflinching, and powerful, and left no room for confusion or questioning. Here’s why:
Focus on the positive.
Telling the truth well is done by focusing on what did happen, rather than focusing on what did not happen. In the Taylor Swift example, opposing counsel’s repeated attempts to get her to question her own actions and the actions of others that day (namely, her bodyguard) were unsuccessful. Swift refused to fall into the trap. She answered his hypotheticals and blaming questions with a focus on what she knew to be the truth, that someone had groped her and that person was David Mueller. Rather than agree to the negative framework of what “could have” or “should have” been done, focus on the positive – what was actually done and why that was the most appropriate response.
Refuse to adopt their framework.
Opposing counsel’s language is certain to be filled with their framework and views of the case. Encourage your witnesses to use their own framework to tell their story. Swift was asked at one point if she could have taken a break from the photo shoot if she was truly distressed, to which she responded, “And your client could have taken a normal photo with me.” Encourage your witnesses to use their own framework to tell their story. Remind them that they view the case in an entirely different way, and to avoid adopting the other side’s frame when answering difficult questions.
Stick to your themes.
A colleague of mine used to say, “If an answer is good once, it’s good twice, it’s good three times.” Too often attorneys are able to get a witness to change a good answer by asking the question again, suggesting the answer wasn’t responsive, or by using a variety of other questioning techniques. The art of staying in control and not falling prey to attorney tactics is achieved, in part, by sticking to your themes. Taylor Swift did this masterfully. She used her theme – “your client’s hand was on my ass” – once, twice, three times, and more during her cross-examination. When asked about being closer to the DJ’s girlfriend than the DJ himself, Swift replied, “Yes, she did not have her hand on my ass.” When asked if she was critical of her bodyguard not intervening, Swift replied, “I’m critical of your client sticking his hand under my skirt and grabbing my ass.” (Arguably non-responsive, but effective nonetheless.) When asked why her skirt did not seem disrupted in the photo, Swift replied, “Because my ass is located in the back of my body.” When asked why the photo did not show anything visibly inappropriate, Swift responded, “…this is a photo of him with his hand up my skirt—with his hand on my ass. You can ask me a million questions—I’m never going to say anything different. I never have said anything different.”
Part of a good witness preparation session is establishing the witness’ key themes (using their own words) and practicing responsive ways to insert the theme into the testimony – a lesson well demonstrated by Ms. Swift.