Wyzga On Words

What To Do When Your Witness Forgets? Step By Step By Elliott Wilcox, Attorney At Law.

“What to Do When Your Witness Forgets”

by Elliott Wilcox

Things were going great.  You'd picked a fantastic jury, delivered an opening statement that got the jurors cheering for your client to win, and your first three direct examinations had gone better than you could have hoped.  Now, halfway through the direct examination of the day's final witness, things are still going exactly as planned.  Your witness is completely prepared, easily answering all of your questions without hesitation, and the jurors are hanging on his every word, completely enraptured by the sound of his voice.  But then, midway through your examination, something unexpected happens when you ask this crucial question:

Q.  “What is the worst fraternity on this campus?”

A. “Well that would be hard to say, sir.  They're each outstanding in their own way...”

Every other time that you've asked this question during your pre-trial preparations with this witness, he's been quick to identify the offending fraternity.  But now, his brain seems to have gone blank. 

[With apologies in advance to Speed fans]:
“Ok, pop quiz, hotshot. The witness has just given you an answer you didn't expect.  If you try to ignore it, the bad answer will destroy your case.  If you try to lead the witness to the correct answer, your opponent will object.  What do you do?  What do you do?”

First things first: DON'T PANIC! 

Far too often, attorneys (especially younger attorneys) lose their minds when they get unexpectedly bad responses from their witnesses.  The worst thing you can do at this point is to give your jurors the impression that you've just lost the case.  Chances are, the witness's incorrect answer isn't nearly as fatal as you think it is, so put on your poker face.  If you freak out, the jury will amplify the importance of the negative answer.  Just keep your cool -- you can fix this.

The next step, before you start jumping through evidentiary hoops trying to refresh the witness's recollection or establish a past recollection recorded, is to ensure that your witness really doesn't remember.

“What do you mean, 'ensure that he doesn't remember'?  Of course he doesn't remember, because otherwise he would have answered my question correctly!”

Actually, that's not necessarily true.  Often, witnesses know the correct information, but the reason why they don't answer correctly is because we ask them lousy questions.  Before you attempt to refresh his recollection, take responsibility for asking a lousy question, and then try asking your question a different way to see if that jogs his memory.  For example, set some parameters for your question, and make it easier for the witness to answer:

Q. “Based on their GPA's and disciplinary records, what is the worst fraternity on this campus?”

A. “Oh, that would be Delta house, sir.”

Sometimes, that's all you'll need to do to get the right answer.  But if rephrasing the question doesn't work, you can also try asking for the information in a different manner.  Are there other questions you could ask that get the same answer?  Consider stacking those questions on top of one another:

Q. “Who dropped a whole truckload of feces into the swim meet?”

A. “Delta house.”

Q. “Who delivered the medical school cadavers to the alumni dinner?”

A. “Delta house.”

Q. “Every Halloween, the trees are filled with underwear.  Every spring, the toilets explode.  Which house is responsible for these shenanigans?”

A. “Delta house.”

Q. “What is the worst fraternity on this campus?”

A. “Delta house, sir.”

Q. “Of course I'm talking about Delta, you TWERP!”

It's not as graceful as the first method,  but it still gets you to the correct answer without having to ask any leading questions.  But let's say none of these rephrasing techniques are working.  Regardless of how you rephrase the question, your witness still can't remember.  What do you do then?  When you've exhausted rephrasing techniques, the next step is to refresh the witness's recollection.

Jurors understand that witnesses sometimes need help remembering details.  For example, if I asked you what you were doing on July 10th of last year, you probably wouldn't be able to remember.  But, if I gave you a chance to look at your calendar, you could probably tell me exactly where you were and what you did.  That's the reason why the rules of evidence allow witnesses to refresh their recollection.  Here is the process you'll need to follow to help your witnesses remember:

Step 1.  Show that the witness can't remember.

Q. “What is the worst fraternity on this campus?”

A. “I can't remember.” 
A. “I don't know.” 
A. “I cannot recall.”
A. “I used to know, but I can't think of the answer right now.”

Showing the witness's lack of memory is an essential step that can't be overlooked.  Unless you can show that the witness doesn't remember, you won't be allowed to refresh his recollection.  There's a world of difference between the witness who can't remember and the witness who remembers the wrong answer.  You can't refresh a witness's recollection simply because he's giving you a bad answer.  (You can impeach him, but you can't refresh his memory.)

Step 2.  Show that the witness previously remembered the information.

Q. “Did you used to know which fraternity was the worst on campus?”

Q. “Prior to today, did you have an independent memory of which fraternity was the worst one on campus?”

Q. “DId you previously remember which one was the worst?”

Step 3.  Ask the witness if there's anything that would help refresh his memory.

Q. “Would it refresh your recollection to look at your report?”

A. “Yes, if I could review my report, that would help me remember.”

Q. “Is there anything that would help you remember?”

A. “Yes, if I could smell a whiff of stale beer and listen to Otis Day and the Knights singing 'Shout,' I think that would refresh my memory.”

Q. “What do you need to help you remember?”

A. “If you'd let me smash a beer can against my forehead, that always triggers my memory.”

The important thing to remember about refreshing memory is that you're not limited to showing the witness documentary evidence.  Typically, you're going to use written documents to refresh witnesses' memories, but understand that you're not limited to paper exhibits.  If there's anything that helps the witness remember, you should be permitted to use it to refresh their memory.

During this step, it's often worthwhile to have the witness explain to the jury why the item will refresh his memory and why he needs some help to remember.  For example, let's say you're dealing with a police officer who makes lots of DUI arrests each year.  By the time the case reaches trial, it's understandable that he might need some help remembering the exact details of this arrest, as opposed to the dozens of other cases he's worked.  Before he uses his report to refresh his memory, you'd want to ask him about the report.  “How soon after the arrest did you write the report?  Why did you write it?  How detailed does it have to be?  How accurate are you when you write it?  What details do you include?  Is it intended to help you remember details about the case months, years, or even decades afterwards?”  By asking those details, you help show the jurors that the refreshed memory will be accurate.

Step 4.  Show the refreshing item to opposing counsel.

Step 5.  Show the refreshing item to the witness, asking the witness to examine the item silently, and then look back at you when he's finished.

Step 6.  Ask the witness if his memory has been refreshed.

Q. “Having reviewed your report, does that refresh your memory?”

Q. “Did smelling the stale beer and listening to 'Shout' help you remember what fraternity is the worst on campus?”

Q. “Now that you've smashed a beer can on your forehead, are you able to remember which fraternity is the worst on campus?”

[If the item doesn't refresh his memory, you can still try to get the testimony in through the “Past Recollection Recorded” evidentiary predicate, but you won't be able to use the “Refreshing Recollection” predicate.]

Step 7.  Once the witness has refreshed his memory, re-ask your original question.

Q. “Now that you've refreshed your memory, please tell us, what is the worst fraternity on campus?”

A. “That would be Delta house.”

It's a good practice tip to tell your witness to turn over the document before answering, so the jury can see that he's testifying from his refreshed memory, and not merely reading aloud from the document.  The jury wants to see that the witness has an independent memory of what happened, and isn't merely parroting what he just read.

Hopefully, you'll never run into the problem of having a witness forget what to say.  But, if you decide to try cases in the real world, sooner or later, it's bound to happen.  When it does, use these quick tips to help refresh your witness's memory, and your case will be back on track before anyone even notices.

WANT TO USE THIS ARTICLE IN YOUR EZINE, WEBSITE, OR BAR ASSOCIATION PUBLICATION? You can, as long as you include the following blurb with it: Elliott Wilcox publishes Trial Tips Newsletter. Sign up today for your free subscription and a copy of his special reports: “How to Successfully Make & Meet Objections” and “The Ten Critical Mistakes Trial Lawyers Make (and how to avoid them)” at www.TrialTheater.com

Storytelling Is Not Just What You Do - It's Who You Are.

Every time I turn around there is yet another post exhorting the reader to watch a speaker on TED, see a certain movie, read this book, take that course, and so on to "become a storyteller."

How come that irks me?

Here's the thing about storytelling: it's not just something you do - it's who you are, who you declare yourself to be.

Yes, I have written and spoken about "homo narrans" - a term coined by my former University of San Diego law school professor Steve Hartwell in a law review article on narrative.  The term translates to mean that we are story people or narrating people.  It means that we relate to each other in a form of narrative we call 'story.'

On the one hand we are all storytellers.  On the other not all storytellers are created equal.  Here's the difference.  Think of stage and screen actors.  Some merely posture while others transport you because they have so fully and completely and convincingly stepped into the role to become the character.  You know what I mean.

When you are in the thrall of a storyteller with a capital "S" there is no mistake who has declared themselves to be the storyteller.  Story moves through them.  The teller almost fades away as she becomes the conduit for the story being told.  This is, in part, what allows us as the listener to be transported in a virtual journey with the story, the teller and listener becoming one. 

As to the rest of us?  We polish our platform skills.

Does that mean all is lost?  No.   If you choose to take on the mantle of storyteller whether at trial, in front of an audience, in a retreat, and so on know that telling a story is not the same as becoming the storyteller.  Declare yourself to be a gift to the listener.  Tell from a common space where humanity recognizes humanity.  Take the listeners on a journey and bring them safely home.

How come this authentic approach is so critical to your storytelling integrity?  Storytelling is a matter of trust and relationship between the story, the teller and the listener.

"Storytelling thrives on imagination.  Images touch the heart and become sensations, sensations trigger memories, memories create meaning and meaning leads to listener action."  [Diane F. Wyzga 2003]

Become the story.

What Do I Mean When I Say "Power, Passion & Precision"?

 

Power.

            Passion.

                            Precision.

For decades now I have repeated my "3P Mantra" when speaking and teaching communication skills, story skills, and platform skills.  I use the "3P Mantra" on my office voice mail.

Power means coaching yourself to practice like you play.  The team plays to win.  The team practices to win.  You play to win - so practice like you play - with power.   A coach at my gym was training a member to get ready for her first tri-athlon.  It was the coach who kept reminding the trainee that she was getting ready for a race, a competition, to beat other people - not just taking a bike ride or a swim.  She took the advice and came in 4th in her class.

Passion means having life.  Does your case story come alive?  Or are you putting lipstick on a corpse?  Do you have a sense of affection for your work, for your client, for this case?  When my clients express exhaustion I always ask them, "For what do you have affection?  How do we marshall that for the task at hand?"

Precision means that state of being exact.  To be exact you must consider all the ways to get it right. To get it right you must develop the right story, right facts, right issues, right language, and right mindset. It can't be wrong when it's right.

Power.

            Passion.

                            Precision.

Lawyers are Suspicious of Stories That Do Not Come Packaged in Structures.

I am delighted to have been invited to join Kathy Hansen's blog, A Storied Career!

Just in case you missed us, over the next several days I'll be re-posting the interview she conducted with me and began publishing on April 9th.

Click here for the 3rd post.

Nurses Hold the Space for Patients, Families to Tell Their Stories.

I am delighted to have been invited to join Kathy Hansen's blog, A Storied Career!

Just in case you missed us, over the next several days I'll be re-posting the interview she conducted with me and began publishing on April 9th.

Here's the second post

Q&A Tuesday: What Makes My Character Or Client Believable?

Q:    What makes my character (or client) believable?

A:    For starters, no one is either all good or all evil. You need a bit of both.

The mistake many folks make when they create a character (or prepare a client for deposition or trial) is they want to err on the side of "my guy is all good and the other guy is all bad."  This sounds like something one would hear in divorce counseling. The truth is, even Darth Vadar and Lucifer started out on the bright side.

Generally speaking we like people like us.  Whether we are conscious of it or not, we relate to characteristics in others which are like those in  people familiar to us. These sense impressions inform the attitudes we have about people - before we even know them. 

In a real world setting like a trial, we want to know if the client comes across in a positive way - or do they turn off the members of the focus group.  What about the client is not believable?  And can this thing be truthfully and accurately corrected so the client is compelling and convincing? 

That does not mean we erase the flaws.  Not at all.  In fact, the case may require the lawyer to embrace the flaws while showing that the event had nothing to do with the flaws.  In the alternative, the flaws may be presented as having some part to play in the event but to a much lesser degree than that of the opposition. 

The key is to steer clear of generalities and stereotypes when preparing your client.  And remember you can't put lipstick on a pig.  Well, you can - but what are you left with? 

 

In the fictional world the same notion applies.  What makes characters endearing is that they have recognizable flaws and virtues.  We may recognize the flaws as belonging to someone else we know - not us.  But we recognize them just the same.  Give us a bit of both angelic and misbehavin'.

I was thinking of this concept while watching re-runs of The Big C, a TV series starring Laura Linney and Oliver Platt.   Linney's character has been diagnosed with cancer and she's trying to have the time of her life while there is life. Platt's character is her self-absorbed husband. But as you allow the characters to develop you come to realize that Linney's character is not all grace and sunshine.  She has a pretty selfish streak.  And Platt's character has a deeply feeling side you would not easily suspect in the beginning.

TIP: Create your characters or develop your client like the well-rounded human beings they are taking advantage of flaws and virtues as befits the situation.

 

 

 

Q&A Tuesday: How Do I Get Down The Story?

Q:    "I have so many details, so many facts, so much information....How do I get down the story?"

A:    Sentence by sentence, using index cards.

When I work with lawyers and others who need to tell a story, I am fond of the compression exercise I learned from Jay O'Callahan.  The trick is to get your whole story down to 15 seconds.  It works.  And then you can put down the paper and no one gets hurt.

Here are two more techniques you can use.

This first one comes from a favorite author, Anne Lamott, who wrote "Bird By Bird - Some Instructions on Writing and Life."  I am charmed by the little story that gives us a clue to the treasures her book will hold, as follows:

"Thirty years ago my older brother, who was ten years old at the time, was trying to get a report on birds written that he'd had three months to write.  [It] was due the next day.  We were out at our family cabin in Bolinas, ans he was at the kitchen table close to tears, surrounded by binder paper and pencils and unopened books on birds, immobilized by the hugeness of the task ahead.  Then my father sat down beside him, put his arm around my brother's shoulder, and said, 'Bird by bird, buddy.  Just take it bird by bird.'"

That is the very same advice I give those with whom I am working. 

Imagine that you are walking in a great swirl of papers.  Each sheet of paper is an item of information for the story.  No wonder you feel lost.  Grab one paper and begin there.  Then take it piece by piece or, bird by bird.

This last tip came to me this morning.  A high school senior by the name of Ben Breedlove wrote his story early last month before he died from a longstanding heart condition. His technique is profoundly stirring.  Words written on index cards, no sound, only the expression in his eyes and the occasional grin.  He was gorgeous.  In his memory I would like to share the technique with you in the expectation that it will be another tool for you to get down the story.

Click here to access  This Is My Story (Part I) and Part II.

Imagine having your clients do the same work.

It's as simple as that.  And if you're still perplexed, call me and we will create the story together.

 

Announcement: Lightning Rod Communications Adds "Lawyer Development" To Services.

Thank you to friends, clients and colleagues who have reminded us here at WyzgaOnWords and Lightning Rod Communications that the #1 fear we "homo narrans" (humans wired to tell stories) have in common is not fear of ssssssssnakes                        

    (although that is #2).

What unites us is fear of public speaking. Daniel Denoon reports:

"If speaking in public scares you, you aren't alone, says Paul L. Witt, PhD, assistant professor of communication studies at Texas Christian University, Fort Worth.

"It is even scarier than rattlesnakes," Witt tells WebMD. "The idea of making a presentation in public is the No. 1 fear reported by people in the U.S."

And it's not just making a speech. Anxiety strikes any time we present our ideas in front of other people.

"Anytime people make verbal remarks that need to be clear and persuasive, we find widespread reports of stage fright and nervousness," Witt says."    

To meet a very real need, Lightning Rod Communications ("Translating Images Into Action") and WyzgaOnWords ("Telling stories to understand, relate and persuade") added "Lawyer Development" to our list of professional services.

What can you expect?  Experienced, professional and individualized training and coaching to produce:

• Narrative skills designed to enhance what you do well;
• Clear, concise and cogent writing;
• Presentations delivered with power, passion and precision;
• Deliberate word choices to be heard, recalled and acted upon; and
• Platform skills (also called theater skills or delivery skills).

All the world's a stage! 

It's time you took your (confident) place on it. 

When Children Are Asked To Testify, The Recall Should Be Carefully Questioned

This small piece by Sindyan Banoo writing for the NYTimes Science section on September 6, 2011, "Memory Process Takes Years to Fully Develop", bears some careful consideration for lawyers and others who are calling children to testify.

A new study reported in the journal Child Development cautions that the ability to remember the origins of memories develops into adolescence and matures in adulthood.  Excerpt.

"Although memory performance generally improved with age, the ability to trace the source of a memory — evaluated by the second test — was particularly weak in children. Adolescents and adults performed equally well, but with a significant difference.

The participants wore electroencephalogram caps that measured their neural activity. Only adults showed a sophisticated pattern of activity when they were retrieving source memory information, said the study’s lead author, Volker Sprondel, a psychologist at Saarland.

Using behavioral measures alone, the researchers would not have detected the difference between adults and adolescents, Mr. Sprondel said.

The findings suggest, he added, that when children and adolescents are asked to testify, the reliability of their source memory — for example, recalling the first time a certain person was encountered, and where — should be carefully questioned."

Click here for the abstract.

The Spirit Of The Law As Against The Letter Of The Law - Which To Apply & Why?

On Saturday my friend will compete in the Ironman Race in Windsor, CA.  I told her I would burn my magic candle for her between the hours of 0500 and midnight, the time she will be running, biking and swimming.  My friend won't be able to see my candle; but I am guessing that the thought will encourage her.

I am reminded of a favorite story I have often told from the platform.  I loved this story from the first moment I heard it told to me years and years ago.  It's one collected by Harold Courlander and Wolf Eslau and comes from Ethiopia.   The theme that runs through the story is one very common to a great part of Ethiopian literature: the spirit of the law as against the letter of the law.

Here are the bones of the story.  A servant boy who had come from the country to serve a rich master wondered aloud one night, "How much cold can a man stand?'  His rich master asked him if he thought he himself could stand the cold of a night on the highest peak in the land, Mount Suluta.  And the boy said he could if there was something worthwhile to gain.

His rich master made the boy a bet that he could not stand one night of cold on Mount Suluta without a tent or clothes or fire.  But, if he did manage to do that the rich man would reward him with land and cattle and a home of his own.  The young boy agreed to the wager. 

To seek some comfort and encouragement the boy visited a tribal elder who told him that he would burn a fire all night long on a hill top the boy could see across the valley from Mount Suluta.  When he got so cold he could not go on he was to look across the valley and know that his friend was there tending the fire for him.  And that would give him warmth.

And so plans were made.  The day arrived and the boy climbed to the very top of Mount Suluta with other servants sent by the rich master.  They took his clothes and sat huddled in a tent drinking hot tea while he was left alone in the cold dark night.  The moon rose, the stars passed overhead and the boy was frigid.

Yet, across the valley he could see just a pinprick of light.  He knew it came from the fire being tended by the tribal elder and the thought of this friend's generosity gave him courage.  In the morning the servants were astonished to find the young boy alive.  They wrapped him in blankets and carried him with great ceremony back to the home of the rich master.

When they arrived the master wanted to know what sustained the boy through the dark and frigid night on the mountaintop.  The boy told him about the fire that was tended on the hill top across the valley.  When he heard this the master grew enraged and he said the bet was off!  There would be no land or home or cattle for the boy - he was to remain a servant because he broke the rule of no fire.

What do you imagine happens next?