Monthly Archives: October 2013

Emotions in Your Case


Plutchik’s Wheel of Emotions, above, an extremely useful tool,  may be found at:

Anger and loathing are emotions that seldom, if ever, play well in the courtoom.  I believe that this is, at least in part, because these emotions are second- level feelings that do not reveal the authentic underlying feelings and are, therefore, perceived as disingenuous or offputting.

Anger, for instance, is often a reaction to pain or grief.  A party who manifests anger and loathing and other negative emotions in the courtroom does so at the risk of alienating or distancing the jury.  I have observed this in action.   The body-language of the jurors was impossible to mistake: when the party-witness was angry, they drew away; when polite and measured (in the face of harsh interrogation), they drew closer.

Try to explore joy, sadness, fear,and awe before yielding to rage and loathing. A jury will feel closer to a party coming to terms with loss, but positive, than a party who is angry and contemptuous, however understandable such negative feelings may be in the face of the injustice suffered.  

A positive stance is a healthier and happier for most parties.

Preparing to Testify at Your Deposition or Trial: Knowing Your Safe Harbors

Malcolm Gladwell, in his 2008 work, Outliers, posits that the “Ten Thousand Hour” Rule is a necessary predicate to achieving mastery and greatness in a field Ten thousand hours is about five years of full-time employment. . I start off with this prerequisite for peak performance to point out the obvious fact: virtually no one has the opportunity to invest this much time in becoming “excellent” as a witness in their own case!

I know what some of you are thinking: I have had lots of experience with public speaking; I have observed testimony of others, in real life and on television; I teach classes or practice as a lawyer or run meetings. Unfortunately, as I have told many clients before: “There is a big difference between watching a hanging and being hanged.” The skill sets you have acquired in various life experiences and walks of life may be helpful, but those skills do not fully transfer to the skills required to providing testimony in your own case.

Whether a plaintiff or defendant, emotions run high for a witness in his or her own case. As we know, high emotion clouds intellectual function. The idea that you will be operating with cool efficiency in a deposition or trial where things that are important to you are at stake may simply not be well-founded. What to do?

Well, although neither you nor I have put in our “Ten Thousand Hours” as a witness in our own case, in my thirty-five years of legal practice, I am close to having achieved the requisite investment of time in attending and preparing clients for depositions and testimony. I have already addressed some of the basics. See Preparing for Your Deposition:Basic Rules, March 2013. There are distinctions between depositions and trial preparation as well. For the point of this entry, however, I would like to simply set out ONE rule that will assist you do your best job testifying on your own behalf.

Know Your Safe Harbors. There are some subject matters respecting which you are the “World’s Greatest Expert.” I advert now to an area to which you have privileged and exclusive access. This is an area where it would be strange for someone to even contest your authority. Facts are generally known and even intimate facts are often subject to refutation by someone or some kind of objective evidence. Your feelings, thoughts, sensations, perceptions, and memories are yours alone. If you were to state: “I went out to dinner last night” someone could dispute that fact, as personal to you as it might be, and other witnesses might share their observations of what you did last night. But, if you were to say: “I am not feeling well” or “I have a headache,” it would be positively bizarre for someone to respond with “Yes, you are” or “No, you don’t.” The areas where your testimony is beyond questioning, respecting which you are the World’s Greatest Expert, are what I call “Safe Harbors.”

So long as you are describing your thoughts, sensations, perceptions or memories, you are in a Safe Harbor. The rules of evidence even make an exception to “hearsay” based on present sense-impression, because it is accepted that when one is describing what one is perceiving at a given moment that it is generally more trustworthy. The more time you spend in your Safe Harbor during a deposition, the less time you will be exposing yourself to effective cross-examination.

Staying in Your Safe Harbor Describing Personal Injuries. Although you are in a Safe Harbor when describing your sensations of pain, physical limitations, activities that seem to exacerbate symptoms, a plainfiff is seldom in his or her Safe Harbor when describing their medical diagnosis, prognosis, or the cause of their symptoms and limitations. You are almost always best off referring to medical records or physician testimony before hazarding anything more than an “imperfect layperson’s understanding” of the mechanism of your condition.

Many medical conditions are purely subjective – that is, the conditions may lack any objective findings. Such conditions may include: pain, anxiety, headache, dizziness, nausea, fatigue, etc. That is not to say that there are no objective findings that correlate with these symptoms some of the time. For instance, a brain tumor can be seen on imaging studies, yet the headache cannot be seen and, indeed, may be experienced from many causes other than a brain tumor. Purely subjectively experienced symptoms are in the core of your Safe Harbor. “I had a crushing headache more painful than anything I had ever experienced before.” This sort of statement is difficult to refute. I say “difficult,” not impossible, because there is one witness who is able to be used to impeach your statement regarding the uniqueness of your subjective experience: you, yourself, in past depositions, testimony, diaries, Facebook entries or medical reports.

Although medical records may have described “headaches” or “migraines” before the collision, it is often the case that these earlier episodes were distinguishable by the frequency, intensity, or quality of the pain. Note that the location of the pain is subject to contradiction or refutation if you, yourself, described a similarly located pain in the past. Let’s try an example. Since you sustained a head injury, you have terrible migraines, for example. You are welcome to say: “I have never experienced pain this bad before.” You become vulnerable, however, if you say: “I never had left-sided head pain like this before.” Why? Because defense counsel are experts at examining past medical records and finding pre-existing conditions. If you previously reported “left-sided head pain,” your Safe Harbor today becomes vulnerable to your own past “Safe Harbor” testimony! Put another way, in your Safe Harbor, you and you alone are able to refute your statements about your sense-impressions.

Statements about current-sense impressions and what you are able to recollect today are largely invulnerable to attack. Statements that imply “uniqueness” of sense-impression previously reported (as noted above) or which differ from your previously reported sense-impressions are vulnerable with potentially serious consequences. A simple example of the latter circumstance will suffice. If you say when you looked up the traffic light was “red” – others may disagree, but they cannot dispute what you report having seen as your sensory impression. If you, on a previous occasion, however, gave a statement that the light was “yellow,” then you have effectively contradicted yourself by offering two different and irreconcilable sense-impressions, thereby undermining your own credibility.

Medical records, because they may contain your own past reports and statements improperly recorded, carelessly transcribed, or simply forgotten, give rise to the greatest vulnerability. Unfortunately, medical records are often given greater weight than they deserve. We know that medical records are often mistaken and inaccurate. This should be no surprise since they are often dictated or transcribed after the events they describe, imperfectly reviewed, and may often reflect misunderstandings in obtaining patient history that cannot be soon corrected because the patient – the person the record concerns – seldom sees the record until years later. There a procedures for having your records corrected. Use them.

Staying in Your Safe Harbor Describing Facts and Events. This is a much more difficult proposition since facts, being objective, are susceptible to dispute by others. Yet, any time you are testifying about facts and events that occurred in the past, you are testifying based upon your memory. Every answer is necessarily “to the best of my recollection.” If your recollections are disputed or shown to be inaccurate, your trustworthiness as a witness may be greatly impaired. It must be recognized that the Safe Harbor for facts is necessarily much narrower than that for personal sensations. While one’s sensation of having a headache may be beyond effective challenge, the quality of one’s memory, also subjective, has much to do with your credibility as a witness. As a general rule, the more certain you are regarding the accuracy of your recollection of events, the more devastating is the evidence showing your recollection to be inaccurate.

There is only one remedy to this situation: know what you know and know how certain you are about what you know. Do not be trapped by the idea that questions should be answered, “Yes” or “No.” That ancient rule of thumb for witnesses is simply a reminder to answer the question without volunteering extraneous information. Saying “Yes” or “No” when the appropriate answer is “I can’t be sure” or “I don’t know” or “I think so, but I would need to see my report to refresh my recollection” is the royal road to being impeached and discredited.

It is important that you not let your pride get in the way of admitting when you simply cannot accurately recall a fact or event. Have the humility to know what you know and how certain you are about what you know. Know when you are in your Safe Harbor.