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The Advantage Blog

  • Laura L. Dominic


Updated: Jul 13, 2023

I have several “silly little tricks” that find their way into my witness preparation sessions. For example, when a witness answers outside the scope of the question, I simplify the solution with the example, “Do you know what time it is?” Most witnesses (and most people) answer with the time at that moment – “It’s 2 o’clock.” This allows me to point out that the question was not, “What time is it?” but rather “Do you know?” to which the answer is “yes” or “no.” (I told you it was silly, but it works.) Of all my tricks, there are two that seem to pack more punch than the others and invariably become an important part of every preparation session – “What three things?” and “The Ugly Yellow Shirt.”

What Three Things?

A trial consultant’s role in witness preparation is more than just teaching non-verbal control. Sure, sitting position, facial expressions, and eye contact are important tools to teach. Most of us have heard some version of “What you say is not as important as how you say it.” But teaching witnesses how to own their testimony and control the language in cross examination is an important part of our job, too. Some call this piece of witness preparation “creating themes” or “establishing safe harbors.” But that suggests some element of manufacturing testimony. Themes or safe harbors should not be given to a witness. I’ve seen devastating results when attorneys tell witnesses what to say. “No, that’s not your answer. Your answer is….” (I’ve heard these words more often than I’d like in witness preparation sessions.) Witnesses can feel overwhelmed by the thought of having to regurgitate the attorney’s words perfectly. Some might feel like every answer they give is the wrong answer. Or they simply feel inadequate:“I will never be able to say it as well as you can.”

In my experience, one of the best ways to establish themes for your witnesses is by asking them, “What three things do you want the jurors to remember about your testimony?” I can’t think of a time when this simple question early in a preparation session hasn’t yielded “golden ticket” language. More often than not, the attorneys in the room look up from the exhibits they were leafing through in preparation for the mock examination and beam with a newfound view of the witness. I write down the three things the witness wants the jury to remember and return to those words throughout the preparation session.

A recent example comes from a nurse I was preparing in a labor and delivery case. After just a few minutes of mock cross examination, the nurse admitted the labor was an emergency situation, she did not follow the proper protocol, and a different course of action would have prevented the infant’s injuries. None of these admittances were true. I stopped the session and asked the witness what three things she wanted the jury to remember about her testimony. She thought about it for a while, then answered, “That I am an experienced nurse and have dealt with these circumstances several times before. At no time during the night was I worried that the baby was at risk of injury. And, I’m proud of my professional judgement and would have done it the same way again.” Keeping these things in mind empowered her to answer just about every question in a proactive, controlled, and credible manner. These three things became her themes and safe harbors for just about every type of question.

Question: “You’d agree with me that the fetal heartrate monitor was worrisome?”

Witness: “At all times throughout the night I was reassured the labor was progressing normally.”

Question: “But looking back now, you know there were signs of distress?”

Witness: “Looking back now, I know that at the time there was nothing worrisome.”

Question: “Can you tell me what the heart rate was at 1:24 am?”

Witness: “At 1:24am the heartrate was indeed accelerated, which is something in my 20 years of practice I have seen. It is not uncommon.”

Question: “You could have called the doctor and notified her about the accelerated heartrate, true?”

Witness: “Based on my experience and professional judgement, I don’t think that would have been necessary.”

Reminding the witness of the three things throughout the witness preparation session is an effective way to get the witness back on track when they become derailed by tricky questions. And the testimony is more effective when it is couched in the witness’s own words.

Now, what’s this about an ugly yellow shirt?

The Ugly Yellow Shirt

Good lawyers love to imbed negative assumptions into the early part of a question and ask the witness to agree that the characterization is fair. “You’d agree that using insufficient backing and screws that are too short could result in faulty installation, correct? “The unprepared witness will usually agree with the statement not realizing that they are leaving the notion on the table that this particular job had insufficient backing and screws that were too short. After several answers where the witness falls prey to negative language, I stop and talk about “the ugly yellow shirt” (or whatever color shirt the witness happens to be wearing). It goes something like this:

Me: “Mr. Jones, that ugly yellow shirt you’re wearing, did you buy it at Nordstrom?”

Witness: “No.”

Me: “Oh, you didn’t. Where did you buy that ugly yellow shirt?”

Witness: “Ross.”

Me: “Do you think you got a fair price for your ugly shirt?”

Witness: “Yes. I got a great deal.”

Me: “A great deal, huh? How much did you pay for that ugly shirt?”

Witness: “Eighteen dollars.”

Me: “Wow, for such an ugly shirt, that is a great deal.”

Usually by then, the witness is on to me and is laughing at the ridiculousness of his testimony. I stop the simple exercise and ask, “Do you think your shirt is ugly?” Of course not. We talk about reframing the answer, correcting the negative assumption, and/or disagreeing with the characterization. Then we run through the same set of questions again this time with the empowered witness armed and ready to defend his “lovely yellow shirt.” The exercise demonstrates a frequently used “lawyer trick” and teaches witnesses how to deal with it. But the reason this technique is powerful is because it is such an easy cue to use throughout the rest of the preparation. When a witness slips back into a pattern of agreeing with negative characterizations, we can stop and ask, “What was the ugly yellow shirt in that question?” Or if the mock examiner starts to take the lead in the battle with a series of loaded questions, I’ll simply utter the words “ugly yellow shirt” from my corner of the room, and the witness starts to take control again. It’s simple. It’s time tested. And it works.

Next time you are preparing your witnesses, try these two simple techniques. I bet you’ll find them as successful as I do.

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