The Lingering Impact of Misinformation

 

In trial – or even at deposition – it’s often tempting to dismiss an aspect of opposing counsel’s theory as insignificant, or too “out there” for jurors to adopt, and therefore offer little in the way of an alternative theory. This is not a wise choice.

Results of a study published in Scientific American show how despite the correction of misinformation, people tend to retain misinformation. Subjects in the study were told first that an accident involved a busload of elderly individuals. One group of subjects was told that was incorrect, but not given an alternative version of who was on the bus. Another group was told that the accident actually involved a college hockey team. 

The group given an alternate version (“hockey team”) was less susceptible to responding with the original “misinformed” version (“elderly individuals”), yet even they agreed with certain statements such as “the passengers found it difficult to exit the bus because they were frail.” How can this be? Shouldn’t logic prevail? 

One wishes. Unfortunately, misinformation tends to linger in memory following the rule of precedence: what’s learned first tends to stick with us longer. So it is critical that you counter any theory, or expert witness testimony, or other evidence that you consider “misinformation,” boldly and with as much visual assistance (graphics, video, PowerPoint slides) as you can. Make sure that what sticks in memory is your interpretation of the case, not opposing counsel’s.

Good Writing = Organized Thought

 

Good writing is good writing. It doesn’t matter if you’re writing the Great American Novel, a non-fiction work you’re sure will be the next best-seller, or an opening statement.

Good writing is good writing, and it starts from a simple premise. Organize your thoughts before you put pen to paper, or fingers to keyboard.

A solid opening statement should have no more than three key points you absolutely want to convey to your jurors. Each key point should be easily captured in one short sentence. You can elaborate to your heart’s content following that key point, but in order for your jurors to comprehend your elaborations, you must provide that point. It is called a “key” point for a reason. It provides the key to your ensuing arguments.

Why three key points, tops? Because three points is the number of points most easily retained by the human mind. You need the jurors to retain your points! The sequence of said points is simple. The most critical should be stated first, and the second most important stated last. Whatever is in the middle (unfortunately) may end up forgotten.

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?