Help Witnesses Think Before Responding

Thinking out loud is ordinary, common, and acceptable in regular conversation. However, in a deposition, it can make the difference between solid responses, and responses that give opposing counsel more information than was required – and could damage your case.

For example, to the question: “Are your neck symptoms resolved as we sit here today?” the response was: “Well, my neck was sore from the incision for a while. And I have a pain in my shoulder from that other surgery I had back in ’10, but my neck, yeah, it hurts whenever I try to move my head, like when I drive.”

Thinking out loud gave opposing counsel information regarding residual pain from a prior surgery which could complicate matters for you. Not to say that witnesses should ever hide information, but if the witness had thought through his/her response before verbalizing it, the witness would have limited their answer to the pain experienced as a result of the second surgery – the one at issue.

Help witnesses to do their thinking inside their minds before they verbalize their response. Reassure your witness that the moment or two it takes to organize an answer in their heads will not appear like “fudging” or evading the question. Video-taped role-play as part of witness preparation helps demonstrate to witnesses that “think time” is really very brief, yet critical.

A Simple Tool with Mighty Consequences: The Phrase

How you say what you say is every bit as important as the “what,” the substance of whatever it is you are communicating. Spoken language is decidedly not the same as written language, and lawyers, as accustomed as you are to written language – your daily drill – do not always attend to the expressiveness of their language as much as would be to their benefit.

There are expressive techniques to help jurors understand and appreciate what you have to say in the way you want them to. In other words, to help you be more persuasive. One of the most critical and easy-to-use techniques is phrasing.

Phrasing is the grouping of words together in logical fashion, with a slight pause on either side of the phrase, so that your thought can be easily grasped. Phrasing is how you make sense out of what you are saying, as opposed to indulging in the run-on sentences perfectly acceptable in written communication (like this one!), but lacking forcefulness when spoken.

Think of what you have to say in terms of phrases. Express a single thought, in about 5 to 7 words, pause, and then express your next thought. The jurors will follow your thinking with minimal effort and be much more readily persuaded.

photo credit: RosarioEsquivel gavel por SalFalko via photopin (license)

Use Analogies to Persuade Jurors

You are often challenged to convey complex situations or ideas, unfamiliar to your jurors, in a way that they will understand. A juror who does not understand your point cannot be persuaded to your interpretation of the facts. Understanding is the foundation of juror persuasion.

Analogies facilitate understanding by creating links between the unfamiliar and unknown of your case to the known and familiar aspects of your jurors’ life experience. Analogies compare ideas or situations which are identical in some ways but not in others.

For example, let’s say that part of your case is that cooperation of the nursing staff, hospital equipment supply chain, physicians, etc. is essential to the success of a surgical procedure. You can compare such cooperation to the cooperation required for the success of a baseball team.

Without the cooperation of every member/part of the surgical team, the procedure will fail, just as without the cooperation of every member/part of the baseball team, the team will lose.

Most jurors are familiar with how sports work, but not with how surgical procedures are conducted. The comparison between the familiar and the unfamiliar allows the unfamiliar to be understood in terms of what is identical to the two situations. In this example, it’s cooperation.

It is worth your time and effort to come up with analogies that truly facilitate comprehension of your particular situation. A good analogy can make all the difference when it comes to that critical component – juror understanding of your case, and with it, your ability to persuade them.