Rewiring Witness Prep: 3 Brain Science Strategies Every Trial Lawyer Needs [Ep 143]
Elizabeth explores the application of brain science in witness preparation, offering trial lawyers strategies to enhance deposition prep. This episode focuses on leveraging the limbic system and amygdala to reduce stress and improve memory retention, moving away from fear-based tactics. Elizabeth discusses the importance of engaging clients by addressing their concerns and shares methods to counteract the forgetting curve through repetition and structured sessions.
Elevate your practice with these insights for building a strong foundation in witness preparation. Elizabeth highlights the significance of understanding and applying brain science to transform the way trial lawyers approach witness prep. By addressing the emotional and cognitive needs of clients, lawyers can create a more supportive and effective preparation process. The episode emphasizes the benefits of using technology and structured repetition to ensure that clients are well-prepared, confident, and able to retain crucial information.
In this episode, you will hear:
- Transforming witness preparation using brain science techniques
- Avoiding fear-based tactics to enhance client memory retention
- Importance of repetition to combat the forgetting curve
- Empowering clients with confidence and clarity through tailored strategies
Supporting Resources:
Learn more about the Forgetting Curve
Need to earn CLE credit and learn more about witness preparation? Check out my in-depth presentation: Witness Prep That Works through ALI CLE.
Set up a free call to talk to Elizabeth about her witness prep services: www.calendly.com/elizabethlarrick
Episode Transcript:
Looking for ways to improve your witness prep for your clients? Maybe you have a challenging client who you need to find a different way to communicate with them. Well, this episode is for you. Hello and welcome to Trial Lawyer Prep. I’m your host, Elizabeth Lerick, and we are here to talk all things preparation for trial lawyers. Today’s episode is going to focus in on witness preparation for your client.
And I want to talk about how we can use brain science to better improve our witness prep. Now I gave a full CLE credit presentation on this particular topic with ALI. And you can actually still watch that on demand at their website, which I’ll include in the show notes. But today I want to give you an abbreviated version and just three simple ways we can improve your witness prep.
work with our brain instead of against it. I know that witness prep can be a little bit of a daunting task and sometimes we put it off. Sometimes we even delegate it to somebody else. But I want to make us smarter and that is why using brain science we can use the natural pathways that we already have in our brains, meaning making memories, all right.
Elizabeth Larrick (02:10.138)
to make it easier for our clients to retain the preparation that we are helping them with, learning about depositions. And again, this will make it easier for your client as well. So let’s just talk a little bit about witness prep generally. We are as lawyers hoping that we make some memories for our client when it comes to learning about depositions, how to answer questions, and how to process putting together a response.
Now working memory is really holding three to five things. And our brains don’t actually commit our short-term memory into long-term until nighttime. So when we sit down with our clients and give them a list of instructions, walk through the rules, start talking about content, we are really overwhelming our short-term memory. And so a lot of things are not gonna get committed to long-term. So…
Let’s talk about ways that we can work with our brains and working with memory is one of those things. But my first tip I want to talk about is working with the brain and the limbic system and with the amygdala. Now limbic system, amygdala, you’re thinking, what is she talking about? This is kind of our fight or flight sense. And the natural inclination for many lawyers is to have
a fear as a motivator for our witness prep. So maybe we’re starting out initially with cross-examining our client or asking very powerful defense oriented questions. Maybe we’re talking about if you say this, you’re going to lose your case, right? All of these things are going to trigger the amygdala. It’s going to start sending out stress hormones. And when you do that, it literally
blocks access to rational thought. Okay. So think about that time, prepared a client, they go into that deposition and all of a sudden they get a surprise question and it’s, don’t remember, I don’t remember, I don’t know, I don’t know, I don’t know, on repeat. And you’re thinking, what is going on? They’re in stress mode. Okay. And we don’t want you to trigger that when you’re preparing somebody because again, we don’t make memories when we’re super stressed out.
Elizabeth Larrick (04:31.268)
And even if we do, sometimes it’s just a fear associated memory, right? Which is not really what you want to be associated with when it comes to your client. So number one, we wanna stop using fear first. Now, there is a time and a place for role play, cross examination of your client and preparation, 100%. But when we use that tool is most important. We do not wanna start off by using that tool.
You wanna save that for later, right? Towards the end of preparation, not the end of that meeting, but the end of preparation. And we’re gonna talk about why we might be having more than one session with our clients. But number one is we’ve got to stop trying to use fear to motivate our clients, fear as a way to get them inspired to prepare. Typically what happens in our brain, we’re just swirling, we’re spinning.
or nothing’s really being retained. Again, no access to rational thought. We’re not really making any new memories around these things. And so where do you start? My suggestion is that you start your very first prep meeting asking the client what their concern is about the deposition, right? Now we’re hitting on a couple of different things with our brain.
Number one, we’re asking a question. When our brains get a question, we want to answer it, right? It’s like, boom, we’re engaged. And that’s what we want. We want engagement. We want to make sure that brain is working. And as a lawyer, it’s very helpful to know what is on that blackboard. What is it that they are thinking instead of launching into a list of instructions or a list of rules?
Right, we really need to know what’s going on in that brain before we put things into it. Now, a lot of times clients will resist this. Well, I have so many questions. I just need to know what to say. Or I need to know what the questions are. I’ve never done this, so I have no idea what my concerns are. Okay, it’s a little pushback, right? Just keep moving in, just keep asking them again. Okay, that is my suggestion of where you start. What you will hear are many things that you can use in preparation.
Elizabeth Larrick (06:49.093)
What you will also know is the priority with which they are telling you information. Okay. So you are going to learn so much about what is on their brain, on their minds, what is their concern and the priority of that. Okay. Now that moves into number two, using proper language. So typically people are coming into deposition, never done this before. No context whatsoever in their brains.
So when we feed things like instructions, rules of a deposition, it sounds kind of negative. Also, there’s no real explanation in their brains. It kind of comes in and it doesn’t stick to anything. So number two tip is to use roles, use expectations, and use roadmaps. We always want to be giving an overall context to
what a deposition is and the preparation, right? Preparing them for deposition because we wanna give them the why. Why is the deposition so important? And that’s where kind of the roadmap comes in of where it fits into the case. You can draw a little roadmap. I totally suggest you do that. Now let me go ahead and stop and give credit for roadmaps to Mark Lanier and his amazing constant frequent use of roadmaps in trial. Now I’m applying it in depo prep. And once you’re able to do that, you can…
let the client know what is their job and what is expected of them. What is the job that you will have in the deposition? What is the job of the opposing counsel? Now, when we frame things as expectations, as roles and jobs, we have a little bit better chance at empowering our clients to step into those roles and expectations versus running up against the roles. This particular kind of language really helps
clients who are fearful. These are clients who not going to say a whole lot. They got a real tight lip. They’re real worried. And their thought is like, but the less I say, the easier this will go, which we know that it’s not true. However, if you lean into that job of being able to speak your story, carry the case forward, here is your place. Here’s the expectation that they will have. It significantly helps them be able to relax and lean into that place.
Elizabeth Larrick (09:09.009)
Now this also significantly helps with our clients who may get a little defensive, meaning why are you asking me that? I don’t have to answer that question. You don’t need to know that they get a little defensive and it can happen all different kinds of folks. But again, coming back to thoroughly explaining everyone’s job, the expectation of each person and how that overall plays into the case significantly helps reduce that defensiveness.
just telling somebody that lawyer is just doing their job without explaining what that hall entails can sometimes completely nonstick. And that’s why when we are preparing our clients, again, we really want things to be sticky. We want them to be able to take in the information and organize it, retain it, and keep it so when they apply it, it’s making a lot more sense. Because if we get into the deposition,
and you have a, run into a problem, you really have to figure out in that you can’t just take somebody out in the hallway and say, stop doing that. Typically you’re going to, they’re going to keep doing that because they can’t figure out a different way around it. Well, again, we want to start off on a good solid base of what the expectation is, what their job is and overall how that fits in the roadmap of the case and inside the deposition. You can take all those instructions, take all those rules.
and move them into categories of expectations and jobs makes it much less scary. Remember we don’t want to keep, we don’t want to hit that limbic amygdala fight or flight since we want to empower. Now number three, and that is repetition. So you may have heard about this, maybe not, but it’s called the forgetting curve and it’s been around since like the 18th century. I’ll link to it in the show notes if you don’t believe me.
But basically it says, well, as humans, our little brains forget about 80 % of things after a day. Now, maybe it’s not that bad, but after seven days, I mean, it’s less than 10 % here. How have we figured out how to work with our brains if we forget everything? So first of all, let’s take this into context. If you’re just doing one meeting to prepare your client and let’s say the depot is the next day, they’re not going to remember even probably 60 % of that.
Elizabeth Larrick (11:39.313)
Well, what if there’s two days in between? boy, we’re getting worse. Use this rule, the forgetting curve, as a way to plan your preparation. Except our brains need repetition. It’s called the spaced effect, where basically researchers figured out how much repetition we need in order to retain information. It’s gotta be repeated at a spaced interval. Now for our use as trial lawyers, that means
We need to be thinking about two to three meetings. These do not have to be long, extensive meetings, but you will find as you kind of work with people and do a two to three meeting approach, okay, this meeting will be a little bit longer. Typically it’s the second meeting. Our first meeting, we’re kind of covering the expectations. We’re setting up the playing field and our second meeting we’re getting on the playing field.
We’re going through questions. We’re organizing what is in their brain and helping them translate what is in my brain to the questions I’ll be asked. And then that last meeting where we are fine tuning, we’re practicing, there’s our role play. There’s that cross exam in there. Okay. And again, what you can do at the beginning of each of these meetings is just go back and ask simple questions. Hey, at our first meeting, you told me this was your concern. How is that for you now? Let’s not forget.
And again, every meeting you’re just recoding over the most important things. Typically, if you can have them understand their role, their expectation in their job, and you repeat that, that’s going to get them out of 99 % of problems that occur in a deposition, right? Because they have a good solid foundation, but what they’re supposed to do, where is their lane?
Where is it not? They’re going to feel comfortable. Preparation is just what’s working with already what’s in there, not forcing right our own thought into our own words into their mouths. Okay. That’s called, that’s like unethical. Okay. We don’t want to do that, but want to work that brain. I also want to remind people, I get a lot of hesitation occasionally and people are like, Oh my gosh, three meetings. Again, we could have an hour long meeting. We can have an hour and a half meeting, maybe, maybe an hour and a half again.
Elizabeth Larrick (13:56.133)
Again, building up, recoding over things, you will find that people will bring more questions to you in that second and third meeting. That is excellent. mean, their brain is working on it and they’re trying to assimilate the information. It’s a good sign for you. Don’t forget about Zoom. You can Zoom with people, especially if you’re doing a virtual deposition. Zooming preparation is extremely important to help them get used to Zoom.
and the pitfalls and the benefits. Don’t hesitate to use Zoom. Even if you’re gonna get together and it’s an in-person, it’s okay to have the first one on Zoom or do little warmups on Zoom. That’s totally fine. Use technology to make your life easier. All right, let’s do a quick recap. We wanna use the brain for us, not against us. So here are three ways we can help with our witness prep and use the brain for us. Number one is we’re not gonna start with fear.
Right? We’re going to move that cross examination, that tough role play. We’re going to time that for the end of our preparation. We do not want to start there. OK? Number two, we want to use words that stick. We want to use expectations, jobs, roles. We want to give an overall roadmap for what is happening so our brains know the why and we can move into the what.
Number three, we want to use repetition. We forget it’s just natural. Okay. So we’re looking at two to three preparation meetings and coding back over the most important concepts we learned again to keep refreshing the brain so that they actually stick in there and be ready to use on the day of deposition. All right. I hope you enjoyed this episode. If you want to hear more, I’ve done a full CLE approved
presentation on witness prep that works with ALI and the link will be in the show notes. Naturally, if you have a client that is extremely challenging or maybe you’re having a difficult time communicating with them, I help lawyers prepare their clients. You can reach out for a free call. There’ll be a link in the show notes. All right, until next time, thank you so much.