Making Your Client Your Damages Star

An interview with witness and trial consultant Katherine James

Interview by Drew Ashby

Katherine James, MFA is a nationally-renowned trial consultant who specializes in live communication skills based in the discipline of theatre. Since 1977, she has been working to make attorneys and witnesses better courtroom communicators. She has taught over 30,000 attorneys through ACT of CommunicationTM workshops that she developed with her co-founder and husband Alan Blumenfeld. She has helped take over 1,500 cases to trial and prepared thousands of witnesses. She coaches witnesses and their lawyers to reach, persuade, and activate jurors. Katherine has been widely published. Her articles can be read in the Knowledge Tank on the ACT of CommunicationTM website (http://actofcommunication.com/). She is a member of The American Society of Trial Consultants, and holds a BFA from Illinois Wesleyan University and an MFA from The American Conservatory Theater.

Q1:

In a general sense, how do you help with witnesses? Why would a lawyer ever need a witness consultant in the first place?

I love lawyers and working with lawyers, but you all have a different way of thinking than most people. Unless you are trained to avoid it, that way of thinking hinders effective communication with your client or other witnesses, your ability to discover the stories you need, and preparation of your client to shine when testifying.

Lawyers like rules, systems, and control. They want to know the top 10 things that will work every time. The reality? There is no system for preparing a witness. Or if there is a “system,” it is tremendously complex because it is based around people whose unique complexities are boundless.

In a very broad sense, preparing your client to testify requires that you discover all of their stories, decide what stories others can tell, unburden them from as much liability testimony as possible, understand their unique characteristics, and understand how they respond to questioning (including their fears about the process). Only then can you begin to make all of this work together so that your client can perform at their full potential.

Lawyers often believe that they have clients or other witnesses who will testify poorly. Maybe the lawyer believes they are unintelligent or unlikeable. Maybe those things are true, but they can still be effective witnesses – even great ones. My job is to come in, find that great witness within them, dig it out, nurture it, and do everything I can to get that great witness front and center for deposition or trial.

Q2:

You are brought in to help with depositions and trials. How important is it that our clients do well in their depositions?

Extremely important, for at least two reasons.

First, defendants are terrified that a jury will always find for a sympathetic plaintiff. They think jurors are irrational beings who will ignore liability in favor of their emotions. So a star client is a very powerful force in the case. It is one of the things that defendants are the most afraid of. The vast majority of cases settle before trial. The deposition is the prime opportunity to show your opponent how valuable the case is, that you are ready, and that you and your client are moving in lockstep towards the goal.

Second, you are stuck with whatever testimony the client provides at their deposition, so it had better be good. I don’t say this to mean that the witness should testify to anything but the unvarnished truth. I say this because you may be surprised how often witnesses provide bad testimony based almost solely on fear, insecurity, or uncertainty. A well-prepared witness will have as little of those problems as possible, and ideally none. Removing those problems is part of the unburdening process.

Sometimes I am brought in after the deposition but before trial. The first thing I do is read and preferably watch the client’s deposition. I am often left in complete shock. I was recently brought into a case at this stage. The lawyer was going crazy and had no idea what to do with the client. After watching the deposition video, it was clear that the client was operating almost completely out of fear. The lawyer thought the client was unintelligent. I thought the client was terrified. I later discovered the lawyer did not do any mock examination of the client, and they were screaming at the client in each break. Working with that client removed those shackles. The client’s demeanor completely changed and they became a star witness.

Q3:

So how should we prepare our clients for their depositions?

I could write a book on this! But here are some takeaways.

Rather than teaching through doing that is, a mock examination format lawyers lecture and occasionally demonstrate. You learn best by doing, not by listening to a lecture or trying to imitate someone else. This starts with teaching the nuts and bolts of how to be a good witness, but then we get into “content.” Many lawyers want witnesses to answer questions based on certain topics or key phrases. For example, they say, “if this comes up, say this.” This often messes up the witness. It saddles them with too great a burden. This is terrible in “damages” testimony, but it can be lethal with “liability” testimony, especially if you burden them with testimony beyond their simple direct experience. Attorneys should ask themselves whether it is ethical to push “better” testimony onto their clients. Not only is it unethical, it’s foolish. Is it easier to remember your own words or someone else’s words that you had to memorize? Think back to your wedding ceremony. There were legal words you had to repeat, but perhaps you and your spouse wrote your own vows. Which words filled your heart and made your eyes overflow?

Lawyers often do not address their client’s fears or concerns, or, if they do, they try to explain them away. This is not helpful for the client. Interrupting the flow of a conversation with questions like, “what date was that,” or “who else was present,” may be well-intentioned, but it can also shut down the conversation. I published a great article about this entitled The Scared Witness (free on my website) that explains this in much greater detail. The client must feel like you are fully present with them, that they can tell you anything, and that they are not just there to check a box for you. Just as with any witness, we must learn to listen intently and ask only questions that elicit more rather than less.

You may be surprised how few lawyers actually know their client’s story about the incident. Or all of their stories about how they got there and how life is forever changed. Discovering the whole story is critical. You can do that only by listening and asking questions that elicit more. Doing this in testimony preparation helps the witness remember, and feel the effect it has had. When asked how their life has changed, a prepared witness will say something like, “I’m not sure I can remember everything, but here’s what I can remember now,” after which they tell story after story after story about how their life is forever altered.

Finally, mock testimony is a critical part of this process. I videotape the witness under mock questioning, play it back for them, and ask for their feedback. This helps them see how they look and sound when responding. It can be difficult for them to watch as it would be for me to watch myself but it is very helpful in teaching the witness how to better present and communicate. One tip, though: I often do not play back pure damages testimony. They client doesn’t need to see themselves crying or struggling with emotion.

Q4:

Why are clients not stars when they testify?

At the risk of stating the obvious, the jury must love your client and want to help them. Many things can hinder this process. Here are a few.

We burden them with liability testimony like explaining why things happened the way they did or talking about fault. Your client should have as little liability testimony as possible, and ideally none. Liability testimony gives the jury the opportunity to judge your client. It is a well-known bias that jurors are desperately rationalizing how your client’s injuries could never happen to them. The more you burden your client with liability, the more likely it is that you will invite this judgment of your client and their decisions.

One of the first questions I ask in a case is when the client will be testifying. If they are testifying early, I know we have a problem: the lawyer is trying to prove liability through them. Jurors must hate the other side before they can love your client. Your client cannot lead the charge on both of these things. They must be the lead in the play, not the antagonist.

Your client is also not a star when they have to carry the damages burden themselves. Others must do this for them. They cannot be seen as whining or complaining. Friends and family must tell these stories. You must gather all of them. Those stories come before your client testifies and after you prove liability. If family and friends tell damages stories and your client is on the stand for a relatively short period of time, they have a much better chance of becoming a star.

Q5:

how do we make our client a star damages witness?

Again, your client’s testimony role should be relatively small, and it should involve as little liability testimony as possible. When a case really comes together, your damages witnesses paint the picture about how your client’s life is forever changed, and your client bats cleanup. In a perfect world, your client’s testimony would be summed up like this: “Every day I get up and do the best I can with what I’ve got. And I’m worried about my future. Please help me.” They would obviously say much more than this, but this should be the driving theme.

During this testimony, your client must be an instrument of hope. After all, you are asking for money, and what’s the point of money if your client is constantly depressed, hasn’t moved on, or isn’t doing their best with their life? The jury needs an uplifting and healing story. Tell that story and invite the jury to participate in the healing during your closing.

When your witness is prepared and everything comes together, they will be a star and the jury will want to help them.

Q6:

We’re talking so much about injuries. Does anything change in a wrongful death case?

Yes. In a death case the client should talk about how they are working hard to help others through this tragedy (perhaps through advocacy or a foundation). This is especially important with the death of a child. They must also talk about what the deceased person meant to the world. In other words, they must explain what has been taken from all of us. This comes out through stories.

The client should avoid talking about how their days are constantly dark, how they will never be the same again, or how the marriage is hanging on by a thread when there is the death of a child. If those things are true, have others tell those stories.

Q7:

Where can we go to learn more about all of this?

Our company ACT of Communication is happy to help with any of your cases. We provide assistance in individual cases as well as training throughout the country. We also provide some free resources on our website http://actofcommunication.com/. Specifically, there are a good number of free articles under the Knowledge Tank tab. Finally, we have a book coming out on 2018 entitled What
Can Lawyers Learn From Actors where we will talk about what we have learned in our
four decades of teaching lawyers the
art of advocacy.

About the Author

Drew Ashby is an associate with the Cooper Firm in Marietta, GA. He specializes in catastrophic personal injury, wrongful death, and product liability cases. Drew has a special expertise in product liability cases involving automobiles, ATVs, boats, industrial equipment, and a variety of consumer/household products. Drew is a GTLA Champion
Member as well as a member of the
Verdict
Editorial Board. He can be reached at
drew@thecooperfirm.com.

Lawyers like rules, systems, and control. They want to know the top 10 things that will work every time. The reality? There is no system for preparing a witness.

Interrupting the flow of a conversation with questions like, “what date was that,” or “who else was present,” may be well-intentioned, but it can also shut down the conversation.

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