Have a Heart: How to Tread Carefully into Sensitive Topics

December 22nd, 2018|

A recent episode of This American Life, entitled “The Unhappy Deciders,” described a man named Sven’s experience serving on a jury charged with deciding whether a defendant deserved life without parole or the death penalty. There was no doubt about the defendant’s guilt for robbery and murder – the only question was whether he should live or die for his crime. Eleven of the twelve jurors felt strongly the defendant deserved the death penalty; Sven was the lone hold-out in favor of life without parole. His youth and non-confrontational nature stopped him from going against the group and he voted for the

Lessons from the Kavanaugh Hearings for Trial Witnesses

November 10th, 2018|

Now that some of the heat has started to diminish from the hearings of now-Justice Brett Kavanaugh, it is useful to look at some of the lessons that can be learned for teachers and practitioners of witness testimony. His testimony provides important instruction for trial witnesses, most of whom do not have the luxury (and misfortune) of speaking to audience members who have already formed their opinion about the speaker’s trustworthiness and credibility. The most important lesson that I observed was a reinforcement of the vital role person/act reasoning plays for audience members when attempting to draw conclusions about the

Putting the Spotlight on Bias Blind Spots

October 13th, 2018|

In an ideal world, every decision we make would involve a careful and logical evaluation of every fact, data, or piece of evidence associated with the subject of the decision. In this world, we would not rush to judgement based on previous experiences (e.g., I was bit by a dog as a young girl, so I do not trust this dog on the street). We would examine the available evidence (this dog is not barking or growling, it is on a leash held by a young boy, the owner assures me it is a nice dog, so I should trust

Making Delivery an Equal Partner with Content

September 15th, 2018|

I was standing around a table with some lawyers after a CLE I had just spoken at where I had (apparently provocatively) stated, “Delivery is not the little sister of content in persuasive speaking, she’s the twin sister. In the litigation community these days delivery is jealous of her sister because content gets so much more attention!” When I was a Graduate Teaching Associate, one of our lesson plans was to have the Speech and Communication 101 student evaluate the persuasiveness of four different versions of the same speech. The versions were: Good delivery, bad content Good delivery, good content

Getting the Most Out of Shadow Jury Feedback

August 11th, 2018|

Decades before the O.J. Simpson trial, America had another Hollywood “Trial of the Century.” Errol Flynn, a handsome Australian actor at the height of his Hollywood career, was adored by fans from around the world. That was until 1942 when he was arrested for allegedly taking advantage of an underage girl at a party. When she filed a complaint, the District Attorney remembered a similar complaint made by another young girl, and subsequently pressed charges against Flynn. Flynn hired famed attorney to the stars Jerry Geisler to represent him. It was said that during jury selection, Geisler purposefully left 9

Improving Credibility in Litigation

June 2nd, 2018|

When we have the opportunity to talk with actual juries after a trial, we learn a lot. In a recent post-trial interview, the jurors revealed an influential dynamic that took place early in the deliberation. Their discussion began by going around the table and letting each juror share his or her initial impressions. The juror at the head of the table started first. He gave his overall view of the case. The next juror in line was no more than 30 seconds into her perspective when juror number 10 broke in: “I’m sorry to interrupt, but when that witness tried

Appealing to the Lazy Brain

May 19th, 2018|

Let’s face it, most trials are long and boring, especially in today’s sound bite era where most people’s attention spans no further than the time it takes to read a meme or social media post. Jurors are not used to sitting for long periods of time listening to evidence presented through a question-and-answer format. Yet we expect them to work hard to pay attention, understand, and retain the information. The trouble is, the human brain is naturally lazy. It doesn’t want to work harder than it has to in order to process information. As a result, our brains often rely

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