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Law360 (August 25, 2020, 5:51 PM EDT) --
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| Ilya Lerma |
In reality, witness preparation is a rigorous and deliberate effort of communing with another person. It deploys skills enhanced through discipline, repetition and practice. Nowhere is the transmutation of lead into gold more evident than in the refinement revealed through effective witness preparation.
A lawyer I know recently told me about a scuffle with his client over a damages/injury testimony, describing how the witness couldn't remember anything at deposition. But when he sat down later in the client's home with his video camera, he captured the transformation of this young woman with a spinal cord injury into a master storyteller.
After some guidance she became unstoppable, relaying one usable vignette after another. She secretly hated golf but was nonetheless broken-hearted that she couldn't physically do it now since her injury.
In a halting voice she explained, "It was the last thing connecting me to my Dad," her voice broke off as she offered sparse detail of his death two years prior. "He loved it and practically raised me on the green. Golf brought us closer together. Even after he died, I could hear his voice on the green, teasing me, coaching me, giving me advice. But, that's gone now. I can't hear the sound of his voice anymore."
Unraveling the last painful detail, she sobbed quietly, "The clubs he gave me on my birthday — I sold them, to pay the rent after I lost my job."
The deep meaning of this young woman's loss was entirely missed in disclosures that listed golf among activities she no longer engaged in since her car crash. Yet, it wasn't just golf. There were subterranean caverns of untapped stories of struggle, loneliness and fears of dying that took days to sift through. Such an end result can be transformational for the witness and the case.
Delving into meaningful damages context like this, however, takes time, preparation, cultivation and communion with a client. As it frequently turns out, lawyers can have personal past traumas preventing them from managing a client's deep sorrow, or making them unconsciously avoid facing a client's many losses. Many lawyers might fail to ready their witnesses for far less meaningful reasons, but the overall effect is the same: The witness's story remains unheard.
The work of preparing a witness is far more complex than I ever appreciated as a young lawyer. Like many others, I succumbed to the belief that a witness was well-prepared if they knew the rules and general guide to stick to the truth, only to have them later dismantled under oath.
Justifying minimal preparation, lawyers can default to rationalizations that their witness or client is likeable or can readily recall important facts, but even if this is true, they ignore the impact of stress or the witness's underlying beliefs and fears about their role in the process that seep into their responses and sabotage trial outcomes.
Also, deferring to piles of facts about injuries listed in medical records or asking witnesses to study prior depositions places an absurd burden on folks entirely unaccustomed to talking about themselves, their thoughts and observations, needs, hurts, anxieties, much less doing so in a room full of strangers.
Most egregiously, some lawyers delegate the critical task of witness preparation to untrained staff or nontrial counsel associates, or simply procrastinate to the point of reviewing the rules of deposition in the hallway of opposing counsel's office five minutes before start of deposition.
Whatever the reason, the testimony of these witnesses ends up flat, inconsistent and wholly devoid of meaning. The witness may end up feeling defensive or worse, completely vulnerable under cross-examination.
This, of course, is the classically prepared witness. Fortunately, there is an alternative.
A witness confident in the process and details of what is expected of them can become a powerful vessel of information delivered in a meaningful way. Jurors are far more likely to place stock in the testimony of a former teacher, a business associate or a neighbor about relevant facts than any effort to convince them through any argument made by a lawyer.
The witness's certainty in their ability to retrieve and relay information even under dense pressure and unpredictable twists of cross-examination is similarly important. This is especially true in the courtroom where credibility is everything.
In the pandemic world, however, maintaining credibility means adaptation is king. Courtroom plans for increasing digital testimony, facial coverings during proceedings and enhanced protocols for social distancing interfere with tried-and-true courtroom communication skills.
Details like clear face shields preferred by some practitioners to ensure maximum nonverbal facial communication are critiqued by other lawyers because they impede other important nonverbal cues like vocal patterns, breathing and intonation. Traditional masks have similar grievance wars.
It matters to trial lawyers on both the criminal and civil side what we, our jurors, and our witnesses might be missing when faces are covered or obscured because we know how much information is conveyed nonverbally.
So, how are we to deal with fractions of nonverbal cues remaining in the courtroom? Perhaps more important, how will jurors receive or retain witness testimony with so many new variables at play?
Many courts in California reportedly initiated juror check-in procedures outdoors in an effort to minimize the number of people indoors at any one time. In hot, summer days with limited access to bathrooms or seating, it's likely no stretch to predict enormous repercussions on juror focus and overall receptivity to the case presented.
In Arizona, courts in Maricopa County (including Phoenix) traditionally discouraged Zoom or similar web appearances for witness testimony under their rules of procedure, but even in unlikely instances where civil courts permitted it, the technology and connections over Wi-Fi were unforgiving. Nationally, there are concerns about delays in civil jury trials but more significantly, what a jury trial might actually look like once we finally get those cases restored on the calendar.
These are legitimately concerning hurdles. Reliable and relatable testimony is fundamental to the arsenal of any trial lawyer. Disruptions to predictable communication patterns described above will impact juror attitudes, and witnesses appearing lagging, unfocused or devoid of human connection face unprecedented challenges to attention and interest from jurors.
Now more than ever, witnesses need to be prepared to convey testimony on platforms outside the courtroom and do so in a way that is time-efficient, focused and adept at conveying meaning.
The in-person methods of training are now entirely disrupted by having to prepare witnesses inside their homes, with dogs, kids and the frequent computer glitch. Those are just the operational challenges. There are other, more substantive problems.
For plaintiff trial lawyers with significant damage cases where a witness or client is suffering complex underlying conditions like brain injuries, depression, anxiety and post-traumatic stress disorder, earning the witness's trust over electronic platforms in order to prepare them for testimony is undeniably more challenging. Keying into damages topics requires a particular finesse and attentiveness, but the alchemy of the room is distorted from reality when a witness is on screen.
Subtle nuances in breathing or expressions that used to trigger the navigation into challenging stories are, without question, much harder to detect. Surprisingly, however, it is not impossible. The painstaking work of delving into trauma necessarily draws upon new skill sets adapted for electronic platforms, not the least of which I suggest are endurance and focus. The good news is the skills can be acquired and strengthened.
In a recent videoconference witness consultation, a young girl suffering a brain injury and PTSD rather delightfully entertained questions for the first 55 minutes of our remote session. Unaccustomed to long meetings in front of a computer, however, she fatigued quickly. Had we been in a room together, my normal course would have been to take a break, let her rest and come back to slowly build to the details of the event.
She felt safe in this trudging polite pace. Now, I admit I had huge concerns about the ability to read the witness or discuss the traumatic event without triggering an episodic attack of PTSD. Her lawyer who was observing the session was also skeptical about whether she would even go there and let me know his concerns several times before we sat down together.
But in a moment when she endeavored to be funny and dismissive, she took a breath, but it came at a completely wrong part of her sentence and caused her next word to waver. It was nearly imperceptible and simultaneously spoke loudly to a fear she had not yet shared with anyone, not her husband, not her lawyer, not really even herself.
My ears pricked up and I asked her to lean closer so that we could make eye contact (as much as possible with camera positioning) and I made adjustments to her posture designed to make her more restful. I pressed on, "Why do I get the sense that the story you just told me, isn't really funny, even though you giggled?"
She pulled away again and looked away as she placated me with a nonsense answer. I wrestled her gently back into a calming posture and returned to my question. She forced a few more rounds and each time she settled back in, I drilled down a bit more, until there it was — her story, her fear.
For the first time since the car accident in question, she allowed herself to experience the terror of a moment so painful, her memory sought to bury it forever. We froze as she described the smoking car and her not being able to breathe, and the memory of her husband slumped over the wheel, eyes closed, and how she felt there was no way she could get him out of the car.
She told us how she scrambled for the door and jumped out, and as we each imagined it, felt the rupture pulling apart the flesh of our own hearts. That he survived and escaped only moments later was the emotional healing she most needed, but her heart still carried the scar from that terrible moment of having to decide to escape without him.
As a woman and a mother, I fought the urge to console her. Everyone on screen fell into a dimensional space of her creating and we were drawn into a moment of terror that was alive. It was one of the most moving transformations I've been fortunate to witness, and it was 100% on screen.
These types of moments are important when they can be shared with a jury. Stories of loss in wrongful death cases or deep betrayals in fraud cases can penetrate superficial labels of juror and witness and get us to the human story. It is when we connect as people that we experience a personal alchemy or transformation.
We seek this in many forms, through books, music, film. Indeed, as lawyers we should see the vast expanse of communing at this level with other humans that just happen to be jurors. While other forms of media, like television and movies regularly confront the challenge of conveying human meaning, our medium presents tragic truths to the audience of the jury and a judge.
This has almost nothing to do with acting principles in the courtroom as I have seen suggested by some practitioners. This has everything to do with the authenticity of the witness and the trial lawyer, so that they can transmit the meaning of what happened to a fellow human being, even if it is across the airwaves.
Through exposure and practice, lawyers can acclimate to the nuances of communication over digital media. It will just take some willingness to learn. Suffice to say, the dedicated lawyer will have to retool a few of the trusted methodologies from the past and work toward cultivating listening and observation skills necessary for the digital trials ahead.
Ilya Lerma is a consultant at Trial Structure and founder of the Law Office of Ilya E. Lerma.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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