Back to the Basics of Witness Preparation Techniques
When we’re preparing a client for testimony, whether for deposition or trial, there are basic concepts you need to keep in mind. As trial lawyers, we could be so engulfed in a lot of things that sometimes, we need to step back and look at things from a ground-level perspective.
In this episode, I’m going to discuss these three basic concepts: teaching, communication, and timing. We’re going to touch on the power of visuals, the things that go into preparing for deposition, and how one-on-one meetings can help clients understand what they’re asking. We want to make sure that we nail down some of these concepts before we get into content.
In this episode, you will hear:
- Teaching: Use of visual aids, writing vs. reading
- The value in creating a timeline
- Understanding people’s learning styles: auditory, visual, or combined
- Using legal and medical terms
- Keeping clients from information overload or TMI
- Communication: Primacy and recency
- Timing: When to start and repetition
Supporting Resources:
If you have questions or a particularly challenging client preparation, email Elizabeth directly for assistance: elizabeth@larricklawfirm.com.
Episode Credits:
If you like this podcast and are thinking of creating your own, consider talking to my producer, Emerald City Productions. They helped me grow and produce the podcast you are listening to right now. Find out more at https://emeraldcitypro.com Let them know I sent you.
Episode Transcript:
Elizabeth Larrick: Hello, and welcome back to the podcast, or I should say, so glad that you’re here to join us for your first episode.
This is going to be a pretty good episode. I personally think so because I have been doing a lot of work with focus groups lately. We’ve had a lot of guests in the podcast, which I always [00:01:00] love and appreciate all of our guests. This episode, I wanted to take a moment to go back and really think about preparation basics, very basic concepts of what we’re doing when we’re preparing a client for testimony.
And when we’re preparing a client for testimony, this means either deposition or trial, but in doing some of the work I’ve been doing over the past couple of weeks. I’ve been doing this for weeks and months. And also in some of my speaking engagements, I’ve been seeing some things that I thought, Hey, this would be a pretty good episode where we just stop where we are and kind of look at what we’re doing from a very ground level, basic perspective.
And so what I want to go through is three very basic concepts. One of them is teaching. We are teaching our clients very quickly about a concept very quickly about information and how can we do that effectively. And our second [00:02:00] one we’re going to talk about is communication. How we’re communicating with our clients.
And last one is timing. Now there may be some other basics that come up that I said, Hey, let’s just do another episode. But I really kind of want to stop and tackle these three independently. And first just talk about teaching. We are bringing our clients in for a very specific purpose when we’re preparing for testimony and we have to teach them the concepts of what we’re going to go through.
We have to teach them information. do it very quickly. Time is always of essence and everything that we do as trial lawyers, we have to be very efficient in what we do. And when we are teaching our clients, we’re bringing them into this completely new world, different world that they’re used to, and we’re having to bring them into the case.
Whereas we’ve been in the case working through it weeks, months, sometimes years before testimony comes into play. So we are inundated, right, with information. We also live and work [00:03:00] regularly in litigation field. So it’s not unusual to us. What is unusual is teaching. Somebody from the outside looking in so I just want to look at this from a perspective of what are the best ways to Teach people and what are we normally doing?
So typically when we are getting ready to prepare somebody we spend time with them on the phone We spend time with them one on one and we talk a lot about concepts. So we do a lot of auditory Teaching with people we may have documents which are always helpful things that we need to go through visually But what I really want to to start looking at is how we can combine on a very basic level, auditory and visual learning.
We know from research that when we can use visual aids to help people learn, the learning curve increases by 400 percent or more. People are really going to retain things when we combine auditory and visual. It’s almost up to 62%. [00:04:00] And remember, we have a lot to teach them and not a lot of time to do that.
So we want to be able to combine those things. So how do we get a combination to get the most effective learning? Just from a basic level, again, let’s think of a simple explanation. I recently prepared a gentleman, late 50s, in a very serious. Car crash. And the car crash happened about two years ago. So again, we’re doing a lot of refresh here.
And there’s been a lot of things that have gone on in the case, experts, things that he again, learning curve here, and we’ll talk about a little bit later, TMI when it comes to some of the stuff that’s happened in the case, you know, taking this gentleman where he was. And then, And trying to talk to him about what he will be asked, what are some of the concepts he’ll be asked.
And one of those things was future medical care. There was a life care planner. He had actually met with this person, but again, months had passed and he had not been back to the doctor. I think it had been a couple months and he went back, he went to a different doctor. Like he just wasn’t [00:05:00] really understanding the concept of this claim of future medical care.
So. We first explained it talking to him. Then I said, okay, I doubled down and stood up and got our rolling notepad out basically and started to write out lawsuit and claims and what they were. Now I wrote that in layman’s terms, not necessarily what the legal term is. So here in Texas we have a claim you can have for physical impairment, specifically.
Pretty broad. It’s really confusing to juries as we know who practice here. So I just did medical bills, right? Medical bills in the future. So very simple concepts and then making sure, checking in with him that got it. That’s what we’re here for. That’s what this lawsuit’s about. Then I went back and I said, now, what proof?
Who’s going to talk about this? What’s going to be the proof for this? So that’s where I wrote in medical records, uh, experts, his testimony, where he would [00:06:00] be talking about it. But that opened the door for us then to be able to say, remember you met with that guy, his job is to project out care. That’s what his job is.
Oh, okay. Oh, now like, Some of these things are coming back together. We’re also refreshing his memory and we’re not getting complicated with our visual aid. I just used a giant notepad and just wrote on it. And that was a very simple thing. And it came together for him very quickly when we use the visual aid.
And so it’s that kind of simple teaching that we can do very quickly with somebody. And even if we’re meeting with somebody on zoom, you can use the share screen and type or write on the whiteboard. Okay. Or you can also develop some very simple templates on a Word document and just share that Word document.
You can do a PowerPoint, but a lot of the reason why I think writing is so much better Or even typing is so much [00:07:00] better. It’s because they’re going to learn at that rate as you write. If you already have typing on the page, they’re reading as you’re talking. And we know our brains can do one thing at a time.
So that’s why I think writing it You can write so fast, you can only type so fast, but also knowing like they’re waiting on you. They’re not going to get ahead of you, they’re not going to be lagging behind you. You’ll be right there together at the same time and I think that is also really helpful. One of the other things that I encourage people to do when we’re teaching People information, especially about their case.
It’s really great to do a timeline, right? Just take one of those giant notepads and start marking things off. It’s a very interactive way to do it that gets them engaged constantly and also even making a list of before and after. Make a giant t chart with them. You’re writing their thinking and it’s all [00:08:00] going at the same pace.
Okay, we’re not going to get ahead of anyone, we’re not going to get behind. Some people, it takes them a while to generate things, so they’ve got to refresh that memory. So that’s why I always enjoy either handwriting it up there or typing it as people are talking. No one’s going to get ahead of anyone or behind anyone.
And again, we’re really solidifying concept. They’re saying it and then I write it. Now it’s visually up there. It’s not going anywhere. One of the things I tell people when we get together to prepare for deposition is that when we talk. Feels very abstract versus something that is concrete, like looking at this deposition notice or looking at this video.
That’s why I think. having it nailed down in black and white, written out their words, really solidifies them learning that concept. And again, very quickly, we’ve got a lot to go over, we’ve got a lot to learn. We just want to make sure that we’re solidifying that so that it doesn’t come back up. That’s another thing that we want to make sure that we nail down some of these concepts before [00:09:00] we get into content.
Some of the nuts and bolts of hard cross questions they may get or hard concepts they may be challenged with. And this is something you can look at, engage with your person when it comes to their learning style. If, hey, maybe I gotta lean a little harder on visuals, right, to make sure that we’re getting where we need to go, that I’m going to get assurance as the lawyer that they’re with me and what I am saying.
And that’s the other really good thing about combining the auditory with the visual. Just going back to this whole teaching concept, we want to make sure that we’re hitting people where they like to learn. Auditory and visually, we’re doing a combination of those things. We’re even just taking very simple concepts of claims that are in the case, writing them up on a board, doing something interactive with them.
Even if we’re on Zoom, even if we’re just sharing screen and I’m just typing things up, that’s still very interactive. They’re still learning and [00:10:00] that retention is gonna stick with them versus if we had only sat down and talked. Or if we’d only given them a piece of paper that had everything written on it.
Okay, so we’re making that learning curve quicker. The other preparation basic that I want to talk about today is communication. A couple of overarching things and one would be the language that we use. This is one thing I sometimes I’m going to talk a little bit more about that in a minute, but I’m going to talk a little bit more about how we can help our clients feel like we get really caught in when I say we, as trial lawyers, we get really caught up in leading questions when it comes to asking people for information, especially our clients, because we know so much about the file that sometimes we’re not really trying to learn, we’re just trying to confirm when there could still be a whole lot of information that we’re not getting out of people.
Before deposition or for trial if we’re not asking open ended questions on the language piece on the communication piece Looking at how we are asking our questions leading questions [00:11:00] versus open ended questions. We’re still gathering information We’re still staying curious These are people who have A lot of information and sometimes it just gets stuck and it doesn’t always get out to us until we sit down one on one and depo prep.
That’s not necessarily saying that we’re not doing our jobs, asking questions or our staff is not. It’s one of these things that happens like they feel much more on the spot. They know this is the time that they’re going to actually have to talk on their own. A different thing happens in their mind when they say, Oh my gosh, I got to tell you this.
The other thing about language is there are times where we talk to our clients in legal terms and we don’t pair it together with regular people language. And what can happen sometimes is if we’re going along and we’re talking about a concept or we’re working through. Something that happens in a deposition or something that’s happening in the case.
When we use a word and they don’t know what it is, generally they get stuck. [00:12:00] They get stuck trying to figure out what that word is and they either give up or they make a wrong assumption about what the word means. They generally don’t stop you to say, Hey, what is that? Because you’re going, you’re giving the information.
That’s what they’re there for. They’re not going to stop you and say, hey, wait a minute. What was that word that you said? Because then they forget the word altogether as well. So be very cognizant of the language that you use and the question styles that you use. Always, if you can, pair it together. If you have to use a legal term, pair it together with a regular person term or stop And ask them, have you ever heard that word before?
Okay. Let me give you another example of what that word means, right? Don’t leave people in the dust. Don’t ever assume that our clients know what the legal terms are. Even if we’ve used it six or seven times, this comes down to medical stuff as well. People don’t read their medical records and doctors don’t really necessarily go into a lot of [00:13:00] explanation about medical terms.
They don’t know what it is. And so it’s okay to stop and say, Hey, do you know what that is? Has anybody talked to you about that? So that’s definitely a language piece is something to make sure we’re not going too far above people’s heads and stopping to make sure that they know what we are asking.
Another concept under our communication umbrella is TMI, too much information. We, a lot of times overload our. Um, and it’s really important that we provide our clients with so much information when we are trying to do deposition prep. And that really comes down to just not the right time. There’s really only so much information we as human beings can hold on to.
And if we’re trying to get them to really hone in and focus on, What they’re going to say and how it’s going to work, it’s sometimes really hard for them to then take in more information about the defense experts going to say this, and then there’s this motion for summary judgment. And then [00:14:00] there’s just, and it’s so much information.
It’s overwhelm and they just can shut down. There’s just too much. So I always say, Hey, look at what you’re doing for deposition prep. You may get questions from your client about. I want to know what’s going on with this deposition. I want to know what’s going on with this thing. Sometimes you have to just say, Hey, I totally understand.
We are going to a hundred percent talk about that. But today, this time right now, we’ve got to focus in on your preparation because that’s the most important thing we need to do right now. I’m not advising that you withhold information from your clients about case information. I am just saying in the first place, I’m not going to go into that today.
So in the same frame of preparing your client for testimony, you have to bring them back to center. You have to bring them back to that focus and say, Hey, we’re going to talk about that. We can set another time up for a phone call down the road. Right now, this is where we need to be and be present in what we’re doing.[00:15:00]
Again, that goes back to efficiency. You as a lawyer. You need to keep them on task if they’re going off task. That’s a great example of going off task. Now clients love to go off task. We may be sitting going to do deposition prep and they want to talk about, Oh, this medical provider. And then they, Oh, this Heather story.
And then, Oh, this other thing happened. And. It feels like you’re not getting them to focus in on what you’re trying to do at that moment, but you are still learning stuff. But I’m talking about when the client’s like, let’s go talk about that summary judgment thing, or, Oh yeah, I’ve also got to get you this email thing.
Hey, come on. We are here for this one particular thing, but under TMI, too much information. That’s really where sometimes we. So just give too much, right? So just a concept of communication, thinking about, Hey, there’s only so much communication people can take in and we want to make sure that we look at that, use our time wisely in these preparation meetings.
Not overwhelm them with other things that don’t directly impact their testimony. All right, our two last [00:16:00] concepts under communication are really about brain science and also communication. Thinking about how people learn as well. And that is primacy and recency. Primacy is the first thing we hear, right?
So research shows when we’re sitting down and we’re about to learn anything, right? Even if first thing you hear the jurors here, right? They’re going to learn it, right? So the very first thing that we talk about. They’re gonna retain it. So we need to make sure the first thing we cover is The thing that needs to stick the most so when I prepare people the first thing that we cover is we cover logistics Do you know where you’re going?
Do you know when you’re going to be there? And, have you asked off work? Have you gotten the child care cover, right? And then, what do you expect is going to happen? We don’t cover content first, right? There’s so much content to cover. Liability, damages, [00:17:00] questions, right? Now they want to go there first.
They’re always going to say, I need to know what questions you’re going to ask me. That’s super content. But, a lot of times, we’ve done that. Skip over the logistics, which is hey, I need you to know where you’re gonna show up to play ball I need you to know what you know, you’ve got everything else covered so that when we get in there You’re not gonna be worried about who’s picking up the kids or I didn’t ask off work or you didn’t tell me it was gonna Be two hours, then they’re completely thrown off So I always talk about our primacy for me is we got to set that stage We need to set that frame for them, get their mindset straight, make sure that they a hundred percent know what they can expect when it comes to where, when, how, and do they have everything covered in their life to give their full attention.
And then we go into, what do you think is going to happen? Who’s going to be there? There’s lots of different ways to cover the logistics is what I call them. I like to ask a lot of questions. Some people just like to lay it straight out there. Who do you think is going to be there? What do you think is going on?
And then [00:18:00] we move to content. So, always think about that when you are going to, once you officially start your meeting. Now, I’m not saying you can’t do icebreakers and hey, how’s it going and how’s life been? Like, that’s all fine, but at some point, your job is to start the meeting and that’s where it comes in, the primacy, right?
We’re here to prepare for the deposition. So the very first thing I want to make sure is you got the date, you got the time covered, you know where to go. Now let’s talk a little bit about who do you think is going to be there. And now you’re setting the stage, right? You’ve got to set that frame first and they’re going to retain that.
And that’s really important because once they get in there and they don’t know the rules of the game, then they may totally flop around because they don’t really know. The last concept in our communication, which is, which is also the last thing, right? So we know through research primacy, the first thing they hear they hold on to and the last thing they hear they hold on to.
Now, what I see sometimes is [00:19:00] people waiting until either the morning before deposition or the evening before to have preparation. And the last thing that they are telling people is learning stuff. They’re trying to teach them things at the very end. And at that point, their brain is still processing information, right?
If you give them something else to learn, now they’ve got to process it and process it. The last thing that I like to do with people is empower them. Give them confidence. Reassure them. I’m giving them good feelings. We’re ending on a high emotional note. So that when they go in there, they begin with that high emotional note, not with processing and trying to grasp a concept, trying to remember it.
There’s a lot of brain energy that goes into trying to learn. So keep those things in mind, the first thing they hear and the last thing they hear. We talk about this, and I know David Ball talks about this a lot in teaching from his Damages [00:20:00] book, right, Primacy and Recency. Something we should always bring into our preparation meetings as well, especially again, let me just harp on this.
We need to be extremely efficient and we need to also remember how people’s brains work and use that to our advantage. First thing they hear and the last thing. All right. Now, third and final concept for our preparation basics is timing. And under here, I’m going to talk about scheduling, we’re going to talk about repetition, and we’re going to talk about content.
So, timing. I get this question a lot. When should I prepare the client? When should I start preparing? Now, some people want to start out, Hey, can we start doing some of these things once we file litigation and months out? I’m like, well, you can, but you’re going to have to repeat it, right? Because people forget that’s our forgetful curve basically says as we go on, we’re really only going to remember 10 percent after seven days.
Timing wise for the scheduling of the [00:21:00] preparation, I say, Hey, then if seven days we’re on the cusp of not remember anything, we need to be preparing within those seven days. Now that doesn’t mean you can’t meet with somebody and do some Repetition. And that’s another thing is when I talk about my scheduling and when to prepare, I’m really talking to folks who you’ve got a large caseload.
You’ve got a lot of people to prepare and you really have to be tight with your scheduling and you’re looking at doing, and I’m going to encourage everybody to do two meetings and the scheduling of those meetings is with some time in between there. So that again, the retention level, the teaching and the repetition is going to happen for our folks and they’re going to come back.
And you can do that with the information processed, with some other great questions, or with some other great information for you. So, we want to make sure we don’t schedule too far out, and we also want to make sure we don’t schedule too close. We talked about the morning of. The morning of, you’re giving them a whole lot of information, and they’re gonna walk into that [00:22:00] room still processing the information, and probably unclear on information.
So we definitely don’t want to put people in that position. Same with the night before. We want to make sure we’re hitting in that sweet spot and then my next concept under timing, which is repetition, doing two meetings, even if you’re just doing your first meeting for 30 minutes and your second meeting is maybe an hour and a half to cover everything.
But you want that repetition and you want also that time for what I call marination, because you’re going to give them a lot of information, a lot of teaching in that first meeting. You want to make sure that they’ve retained it. And that it sunk in, they don’t have questions before you start adding on top of that and really getting into some of the content of things.
And that’s why I say repetition, right, because then once you go back, you can ask, you can test, hey, what questions do you have? Still got it, what are your rights as a witness, right, who’s going to be there, we’re still good, any questions about that? And then for our second meeting, come back in and really start doing some content.
And [00:23:00] that’s my last one for content, which is the timing that we are talking about. are really important content. Typically when I do get to my content stages, I’m doing liability first and damages second, when we get there. And again, remember our primacy we talked about earlier, we really want to make sure we cover logistics, right?
What are the rules of the game? Who’s going to be there before we start getting into the meat and taters of the content. And that’s just because again, we want to make sure that we set their expectations properly before we start getting into Cool. The content of the questions and the responses. You want to make sure everybody knows the rules of the game before we start to play.
And that just helps them also get through that as well. We talked a little bit about if language, they can get stuck on a question or stuck on a word. Want to make sure we get all that out there. Um, and through the path so that we can then really start working with the content that we’ve got. All right.
So preparation basics, we talked [00:24:00] about teaching, communication, timing. These are all things that can apply to you when you’re preparing for anything, or even if you’re going to go prepare your staff to do something. But here we’re really looking at how can we be. Efficient with the time that we had to prepare people for testimony, meeting them wherever they learn auditorily.
Visually making sure that we’re improving that retention communication wise, using our language correctly, making sure we’re not giving them too much information, thinking about the first thing and the last thing that we’re doing with our clients before They walk in that door to testify and ultimately also taking this timing concept and making sure again, we’re being efficient with the time that we get and repetition and thinking about when we start our really heavy duty content phase of preparation.
After we’ve set that frame, the mindset, the expectations, making sure they know the rules, the deposition before we [00:25:00] move forward. All right. I hope that this episode was helpful. It’s a little longer than normal, but hopefully we gathered everything up there. If you have any questions, please don’t hesitate to email me.
I promise I read all my emails. So if you enjoyed the podcast, please rate and review it on your podcast app. If you are able to in your app, just. Do the plus button to follow the podcast so that it automatically uploads, downloads into the application so that other people can find it until next time.
Thank you.