Preparing the Difficult Personality Client for Trial

J. Thaddeus Eckenrode

ECKENRODE-MAUPINAttorneys at Law8000 Maryland Ave.,Suite 1300St. Louis, MO 63105(314) 726-6670jte@eckenrode-law.comwww.eckenrode-law.com

Problem Witnesses at Trial or Depo

• Won’t Listen• Doesn’t care• Too superior• Too dumb• Nervous• Evasive• Too talkative• Ego

• Too “funny”• Doesn’t get the theme• English is not primary

language• Cultural insecurities or

differences• Suspicious or

conspiracy minded

Assessing Witness Weaknesses

• Initial meeting feedback:a) Listening?b) Interrupting?c) Distracted?d) Intelligence/Ego?e) Articulate/enunciate?f) Nervous?

Pre-Testimonial “Prep”

• How much is enough?• What methods are effective?• What limitations do you face with witness

prep?• Timing• Taking the deposition seriously

Deposition Prep

Deposition performance is just as important as trial testimony.

It can mean there will be NO trial.

Professionals as Witnesses

• Should be generally well-educated• Should get the “big picture”• Should understand counsel’s instructions• Should be able to follow testimony guidelines• Should be less likely to be trapped• Should be able to be “responsive”

….but sometimes, none of these ideas are valid.

The Five “E’s” of Problem Witnesses

• Ego• Emotion• Embarrassment• Evasiveness• English

The Four “A’s” of Problem Witnesses

• Anxiety• Anger• Arrogance• Apathy

[William Kanasky, Ph.D., “Witness Report Card – Four “A’s” you DO NOT want them to earn”]

How Much / Type of Depo Prep?

• Short pre-depo meeting?• Practice depo?• Multiple practice depos?• Videotape?• Practice depo with “bad cop”?• Professional witness prep specialist?• Carrier/Adjuster involvement?

“Just answer the question!”

Yes / No / Maybe questions

• Do / Does / Did• Will / Would• Can / Could • Are / Is / Were / Was• Should

Narrative response questions• Who• What• Where• Why• How

80-90% of Answers to non-WWWWH Questions Should be:

• Yes• No• I don’t know• I don’t recall• I’m not sure• I don’t understand what you’re asking

When/how to allow elaboration?

• Respond only (yes/no)?• Respond first, then explain?• Elaborate/explain only?• Double negatives.• Improperly assumed facts.• The “trick” questions – “Have you stopped

beating your wife?”

Testimonial Problem Areas

• Non-responsive, won’t listen to the question

Push witnesses to listen for the clear indications that the question calls for a “yes” or “no”, and impress upon them that they can explain later. Too much information is not usually helpful…

Testimonial Problem Areas

• EGO Some witnesses can’t stand to be criticized or to respond to questions that imply criticism. They won’t just answer “yes” or “no”, but feel compelled to explain, respond and retort. There is rarely a benefit from doing so at this point.

When their EGO just compels them to “explain” instead of answer.

054:06 Q. Well, first of all, you made mention of this medical054:07 school. You never completed medical school and don't054:08 have a medical degree. Is that right?054:09 A. I have never claimed to have a medical degree. And I054:10 withdrew from the program in my fourth year because I054:11 lost interest in doing a residency. And wasn't ready054:12 to take a medical degree from a Caribbean school054:13 without actually being a resident in the U.S; that054:14 wasn't of interest to me. I wasn't interested in a054:15 degree, I was interested in the practice at the time.

When their EGO just compels them to “explain” instead of answer.

Testimonial Problem Areas

• Embarrassment Explain that even if the question deals with a topic that may be embarrassing, just respond to the question – explanations can come later (unless counsel specifically asks for one now).

Embarrassment causes one to forget what is actually being asked

092:20 Q. Let me show you what I've marked as Exhibit I. It's a092:21 letter dated December 17, 1986 directed to you from092:22 the executive vice president of the institution, a Dr.092:23 Tollar. You've seen this document before, I assume.092:24 Is that right?092:25 A. No. I don't have a recollection of this document. I093:01 have no idea how someone would get a document out of093:02 my private file. And I've been told that this093:03 document doesn't exist anymore, or no documents exist093:04 anymore with regard to this particular issue. So if093:05 somebody took something out of a sealed file, then I093:06 believe they're violating some kind of order. I can't093:07 imagine how someone got this. I'm curious where you093:08 got it, actually.

Testimonial Problem Areas• Difficulty with the

English language or cultural sensitivities

CRITICAL to keep in mind that witnesses for whom English is not their native tongue will have issues trying to “translate” their explanations, and word choices are often poor, especially under stress. They sometimes don’t even understand the “yes/no” questions.

English as a second language problems

005:04 Q. Okay. And have you ever been a defendant in005:05 any type of medical malpractice lawsuit?005:06 A. No.005:07 MR. ECKENRODE: He's asking about the005:08 suits.005:09 A. Oh. I have three lawsuit in the past.005:10 Q. Okay.005:11 A. First one when I was a resident.005:12 Q. Okay.005:13 A. It was settled out.005:14 Q. Do you remember what year that was?005:15 A. I think 1982 or '83.005:16 Q. And where was that?005:17 A. I was on call that night and the baby crashed,005:18 so I help to take care of baby, got baby back, but the005:19 baby got complication from the blood clot so they had to005:20 do amputation of the leg. And the case was settled out.

Testimonial Problem Areas

• Verbosity Counsel witnesses on simply answering “yes/no” questions with a simple “yes” or “no”, etc., and that they need not say more, as it rarely helps, and often opens the door to more problems or additional questions.

When your witness can’t shut up

Testimonial Problem Areas

• Arrogance / Evasiveness • Explain the significance and negative impact that giving evasive, flippant, sarcastic and arrogant answers will have on the jury.

Flippant, non-responsive “answers”

Other Problem Areas

• Suspicion• Hyperanalyzing questions• Looking ahead• Trying to tell the whole story too fast• Being too “slick”

Trial and Video Depo Prep

Besides the answers themselves witnesses need to be aware of how their appearance and non-verbal cues are perceived.

• Posture• Head down• Voice tone• Facial expressions

The Added Stress of the Courtroom

Similar to Depo Prep, but might also include:• Courtroom visit• Courtroom practice if facilities are available• Videotaped practice• Practice in front of a group of people (jury)• Mock trial

Testimonial Problem Areas

When ego, arrogance, emotion, a failure to listen to the question, and simply being too talkative all come together…

Summary

To Control Problem Witnesses• Identify the problematic

traits early (EEEEE/AAAA)• Plan a strategy to harness

those problems• Convince the witness that

he HAS problems that must be addressed

• Take aggressive steps to correct problems

Techniques• Video-tape and playback for

witness• Expose him to outside

opinions of his testimony• Explain loss of credibility =

loss of case• PRACTICE, PRACTICE,

PRACTICE!

QUESTIONS or COMMENTS?

…or should we all just head to the social hour?