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Preparing the Difficult Personality Client for Trial J. Thaddeus Eckenrode ECKENRODE-MAUPIN Attorneys at Law 8000 Maryland Ave., Suite 1300 St. Louis,

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Presentation on theme: "Preparing the Difficult Personality Client for Trial J. Thaddeus Eckenrode ECKENRODE-MAUPIN Attorneys at Law 8000 Maryland Ave., Suite 1300 St. Louis,"— Presentation transcript:

1 Preparing the Difficult Personality Client for Trial J. Thaddeus Eckenrode ECKENRODE-MAUPIN Attorneys at Law 8000 Maryland Ave., Suite 1300 St. Louis, MO 63105 (314) 726-6670


3 Problem Witnesses at Trial or Depo Wont Listen Doesnt care Too superior Too dumb Nervous Evasive Too talkative Ego Too funny Doesnt get the theme English is not primary language Cultural insecurities or differences Suspicious or conspiracy minded

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

5 Pre-Testimonial Prep How much is enough? What methods are effective? What limitations do you face with witness prep? Timing Taking the deposition seriously

6 Deposition Prep Deposition performance is just as important as trial testimony. It can mean there will be NO trial.

7 Professionals as Witnesses Should be generally well-educated Should get the big picture Should understand counsels 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.


9 The Five Es of Problem Witnesses Ego Emotion Embarrassment Evasiveness English

10 The Four As of Problem Witnesses Anxiety Anger Arrogance Apathy [William Kanasky, Ph.D., Witness Report Card – Four As you DO NOT want them to earn]

11 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?

12 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

13 80-90% of Answers to non-WWWWH Questions Should be: Yes No I dont know I dont recall Im not sure I dont understand what youre asking

14 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?

15 Testimonial Problem Areas Non-responsive, wont 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…


17 Testimonial Problem Areas EGOSome witnesses cant stand to be criticized or to respond to questions that imply criticism. They wont just answer yes or no, but feel compelled to explain, respond and retort. There is rarely a benefit from doing so at this point.

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

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

20 Testimonial Problem Areas EmbarrassmentExplain 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).

21 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 a 092:21 letter dated December 17, 1986 directed to you from 092:22 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. I 093:01 have no idea how someone would get a document out of 093:02 my private file. And I've been told that this 093:03 document doesn't exist anymore, or no documents exist 093:04 anymore with regard to this particular issue. So if 093:05 somebody took something out of a sealed file, then I 093:06 believe they're violating some kind of order. I can't 093:07 imagine how someone got this. I'm curious where you 093:08 got it, actually.

22 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 dont even understand the yes/no questions.

23 English as a second language problems 005:04 Q. Okay. And have you ever been a defendant in 005:05 any type of medical malpractice lawsuit? 005:06 A. No. 005:07 MR. ECKENRODE: He's asking about the 005:08 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 the 005:19 baby got complication from the blood clot so they had to 005:20 do amputation of the leg. And the case was settled out.

24 Testimonial Problem Areas VerbosityCounsel 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.

25 When your witness cant shut up

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

27 Flippant, non-responsive answers

28 Other Problem Areas Suspicion Hyperanalyzing questions Looking ahead Trying to tell the whole story too fast Being too slick

29 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

30 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

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


33 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!

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

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