By Dr. Ken Broda-Bahm: To be clear, testifying isn’t acting. Testifying is telling the truth. And with apologies to those who will point out that good acting is telling the truth as well, there are some important differences for the testifying witness, not least of which is that any appearance of artifice reduces credibility. Even […]
Witnesses, You’re Preparing for Improv, Not a Play Read More »
By Dr. Ken Broda-Bahm: After threatening that me might end his musical career if the jury went the other way, popular musician Ed Sheeran can now continue his line of work. According to a federal jury in New York earlier this month, Sheeran’s 2014 song “Thinking Out Loud” did not copy the musical structure of Marvin
Take a Note from Ed Sheeran: Show, Don’t Just Tell Read More »
By Dr. Ken Broda Bahm: Lawsuits rarely occur as a result of something good happening. More often, there has been some kind of very bad outcome, maybe even a tragedy. For people who are close to the events that give rise to a suit, it can be hard to avoid absorbing and personalizing some of
Address the Remorse Before Testifying Read More »
By Dr. Ken Broda Bahm: New York Plaintiff’s attorney Ben Rubinowitz has written and presented over the years on an approach toward cross-examination using what he calls “Voice of Reason” questions. He was recently a guest on a podcast called “Unscripted Direct” (“Episode 48 – Bad Facts”) where he demonstrated the approach, which he describes as having
When You’re Crossed, Handle the “Voice of Reason” Questions Read More »
By Dr. Ken Broda Bahm: If your opposing counsel has a flair for the dramatic, then at some point in the deposition or cross-examination, you might get to a question like, “So, if my witness says that didn’t happen, then you’d say she is lying, right?” What the lawyer is hoping for in asking a
If It’s a Lie, Call It Out Read More »
By Dr. Ken Broda Bahm: Every witness preparing for testimony is going to prepare a little bit differently. Those helping with that prep need to adapt to the unique challenges presented by opposing counsel, the case characteristics, the witness’s role within the case, and the witness’s personality and communication habits. But there are inevitably some
Witnesses, Do Your Homework Read More »
By Dr. Ken Broda Bahm: So, your deposition has been scheduled, and you’re just starting to wrap your head around what is in store for you. Your lawyer has already stressed that you are not in the driver’s seat at this stage: The deposition is the other side’s process. Because of that, it helps to
Know the Other Side’s Three Goals for Your Deposition Read More »
By Dr. Ken Broda Bahm: Witnesses, I’d like to have a word. You know the most important audience for your testimony — the jurors in the courtroom with you, or the future jury who might someday see a clip of your deposition? That audience is kind of pulling for you. You aren’t a lawyer, and
Witnesses, Don’t Create Obstacles to a Positive Perception Read More »
By Dr. Ken Broda Bahm: Experienced trial lawyers know it is important that their witnesses are prepared to testify. At the deposition stage, and even when the likelihood of a trial is uncertain, it is critical to invest the time in making sure that the important witnesses know what to expect and are ready to go
Distinguish the Four Types or Phases of Witness Preparation Read More »
By Dr. Ken Broda Bahm: When thinking about the title for this post, I came awfully close to saying that certainty “matters more” than accuracy, but I thought that perhaps it might sound too cynical. But that stronger version is supported by the research: Jurors do seem to pay more attention to witness certainty than
Witnesses: Know that Certainty Matters as Much as Accuracy Read More »