Sunday, September 30, 2012

Who Wants A Perceived Liar On The Stand? Not You!

People aren’t very good at detecting liars. Studies show that people’s hit rate for detecting lies (54%) is slightly above pure chance (50%), which is good news for the liars, but bad news for you in the courtroom.

Why? Because people tend to pay attention to certain cues to determine if someone is lying, but these cues may mean something entirely different.

Take the “vocal immediacy” cue, for example. Vocal immediacy is the directness with which someone responds to a question. The more roundabout or vague the response, the more likely jurors will figure your witness is lying. However, your witness may simply be thinking out loud, which sounds roundabout. Or your witness may not know what to say, and rather than answer “I don’t know,” or “I don’t understand the question” may resort to a vague mulling which again, looks like lying.

Another cue is “uncooperativeness.” People often assume that a person being uncooperative is hiding something, being dishonest. Yet often an uncooperative witness is one who argues with opposing counsel rather than answer the question asked, or attempts to force his or her views of the facts into every response, rather than let their own attorney do the litigating.

Your best witness—among other things—responds directly to the question asked, and leaves the lawyering up to the lawyer.

The best tool I know to help your witnesses get up to jury-worthy credibility is to use video-taped role-play in preparing them to testify. You can’t afford to let your witnesses get away with behaviors that could be mistaken by the jurors as those of a liar.


A WINNING CASE Dr. Noelle Nelson recently consulted on:

*Congratulations to A. Barry Cappello and Lawrence J. Conlan (co-counsel) of  Cappello & Noël (Santa Barbara) for their successful $7.7 million jury verdict in United Studios of Self Defense (USSD) v. Z-Ultimate Self Defense Studios, et al. The jury decided unanimously in favor of USSD on almost every cause of action against Z-Ultimate companies and its owners (former USSD executives). The charges included breach of fiduciary duty, constructive fraud, misappropriation of trade secrets and confidential information, Penal Code 502 (destroying computer records), trademark infringement and civil conspiracy. In addition, the jury found against the owners of Z-Ultimate companies for malice and fraud.

Tuesday, September 4, 2012

Put “Truthiness” To Work For You—At Trial!

The value of visuals in trial work is well established, in that images emphasize and clarify testimony or evidence.

However, new research shows that visuals have impact in yet another way, which can be put to powerful use in the courtroom.

Scientists in New Zealand and Canada examined what Comedy Central satirist Stephen Colbert calls “truthiness” –the feeling that something is true. What they discovered is that when a statement, whether true or not, is accompanied by a simply decorative photograph [i.e., one that does not reveal the validity of the claim], it is more likely to be perceived as true. People simply “feel” that the statement is more likely to be true, by virtue of the accompanying visual.

So the statement “The liquid metal inside a thermometer is magnesium” accompanied by a picture of a thermometer (which revealed nothing about the metal inside), was believed to be true far more often than the same statement not accompanied by a decorative photograph.

What does this mean for you? That even when you don’t have a visual or graphic that directly elucidates testimony/evidence you are confident is credible, it’s worth attaching a visual that in some way relates to the testimony/evidence. You thus have greater chances of engaging jurors’ feeling that the testimony is truthful, as you know it to be.