How Your Emotions Can Help You Win Your Case

 

The question of whether to trust our logic or trust our emotions is rarely brought up in the context of legal matters, at least not from the lawyer’s point of view. Certainly, we discuss endlessly how this or that prospective juror’s mindset (highly emotional versus highly rational) might impact our case, but not usually how the lawyer’s emotion would.

However, research by M. Pham, L. Lee and A. Stephen provides interesting insights into the positive impact lawyer emotions might have in winning cases.

Their study showed that people who were more likely to trust their feelings were also more likely to accurately predict the outcome of a particular event. The researchers call this phenomenon the “emotional oracle effect.”

How does this apply to winning your case? Tune in to your emotions. If, when preparing a witness, you sense that something is “off,” don’t dismiss that because your logic tells you all is well. Trust your emotions enough to say something like “I notice that . . .” or “I’m wondering if. . .” which is a non-threatening way to probe further and take a look at whether or not what you sense with this witness has some basis in reality.

The more you practice listening to the guidance of your emotions, the more you will be able to discern which to trust.

Similarly, you can review the demographics of your prospective jurors all you want and weed out the obvious “bad apples,” but when it comes down to that moment in voir dire when you’re between “keep Juror A versus Juror B,” tune in to your emotions. Listen inside yourself for that intuitive hit and go with it.

Your mind is bigger than your analytic prowess. Use all of it, rational and emotive, in the service of your success.

Want Powerful Testimony? Adopt the Power-Sit

 

Witnesses are nervous enough already at the thought of testifying. Being loaded down with 10 body-language directives from well-meaning attorneys doesn’t necessarily enhance their testimony.

I have found that one simple directive ‘fixes’ a whole host of body-language problems. That is the “Power-Sit.”

Simply put, the witness sits with their rear planted firmly in the “L” of the chair, which assures good posture without having to think about it. They then are asked to avoid leaning to the left or right and to keep their back in contact with the back of the chair at all times. That the more nervous they get, the more the witness can press their back into the back of the chair. It becomes their ‘secure’ or ‘safe’ place.

The impression jurors receive from the “Power-Sit” is that of a confident, straightforward, credible witness – one whose testimony is far more likely to be believed than the testimony from a witness who slumps, or leans to the left or right, or aggressively forward, to give but a few examples.

What a platform for effective testimony! Without your witness having to remember 10 different directives, they only have to focus on one. Now you are free to focus on the substantive issues in your witness’ testimony, knowing their body language won’t be contradicting the testimony.

Zoom Deposition Tips – Round 3 – No Texting!

 

Some situations that would never arise in a “live” deposition can occur in the Zoom format, and if not anticipated, can lead to unfortunate results.

For example, texting. An individual – witness, lawyer, paralegal, observer – texting during a live deposition would be spotted immediately, and if the deposing witness, would be told by their attorney to cease at once. In the Zoom environment, however, it’s not always obvious that a witness is texting, because the witness’s computer camera might only capture their head and shoulders.

But since texting is no different than taking notes, said texts would have to be handed over to opposing counsel, and depending what the witness was typing, could be very bad news indeed.

Witnesses are often not aware that any communication during the actual deposition must be delivered to opposing counsel, just like any documents or paperwork brought in, and sometimes attorneys forget to mention it.

Prepare your witnesses for Zoom-specific sessions by telling them the best thing to do is leave their phone, turned off, in another room, and resist the 21^st century urge to share everything with their nears and dears every second of every hour. Let them know how distracting, if not downright damaging, texts could be to their case. Even if the witness says “But I just want to check in with my spouse.” Sounds innocent, and maybe is, but who knows what opposing counsel might make of it?

Zoom Deposition Tips – Round 1

 

With more depositions being held via Zoom, it’s important to remind your client of some tips that will support successful testimony in this format.

1. We’ve all become used to the casual nature of Zoom meetings in our kitchens and living rooms. However, when it comes to a deposition, just because it’s Zoom, doesn’t mean you can testify in your sweats. It’s important to dress professionally or conservatively, at least from the waist up. So that means no bare arms for men or women, no vivid patterns that would distract from the substance of the testimony, and that all clothing be clean and pressed.

2. We’ve all seen the bloopers online from people on Zoom meetings who forgot to close the kitchen/living room/bedroom door, allowing errant children/pets to wander in. Or a spouse who’d forgotten there was a meeting going on and appeared in his/her PJs yelling a reminder of some chore or task. Tell your client to alert household members to the meeting, and close the door. Perhaps with a sign on it “Meeting in Session.” Bloopers are funny online, not so much when they disrupt the flow of a deposition.

More tips to come next month, stay tuned!

In the meantime, best wishes for Happy Holidays.

Here's a link to an article on how what a witness wears in court can make a difference. The article appeared in The Legal Examiner. I had the pleasure to contribute to the piece.

https://bit.ly/3ngFFXh

For Deposition/Negotiation Success: Speak to the Jurors

 

Your client is a rational, mature businessperson. You expect them to do well at their upcoming deposition. After all, they have plenty of real-world experience, and of course, you go over the facts of the case with them as well as some deposition basics. You are subsequently horrified when they waffle, or get angry, or are evasive, or volunteer or do any of the multitude of the other communication sins that constitute poor testimony.

But here’s the thing. Whether your witness is a CEO or a homemaker, he or she must be prepared as rigorously for deposition as if they were going to trial. Even though, these days, trial is highly unlikely. Why? Because trial or no trial, depositions are critical to your effectiveness in negotiating the best possible settlement for your client. Yet time after time, lawyers fail to prepare witnesses sufficiently for deposition. The reasons are simple. Too much to do, too little time. 

Here's a tip. Tell your witness that although it may seem like he/she is responding to opposing counsel’s questions, in truth, the witness is addressing the jurors. It doesn’t matter whether or not the matter ever gets to trial, when the witness responds as if he/she is speaking to jurors - being informative rather than defensive, polite and even-tempered despite opposing counsel’s ploys - the quality of testimony improves dramatically, and with that, far greater chances of your (and their!) success.