To some people, stress describes the frantic pace of everyday life. To others, stress is what you feel during times of conflict, loss or illness. People also react differently to stress. Some take it in stride and seem to thrive on it, while others buckle under relatively mild pressure. Work can be a stressful place, wherever you are scheduling depositions, handling rush jobs or preparing for trial. Some stress is good. It motivates us and makes us stronger. Too much stress is bad. It makes us irrational and it can, quite literally, kill us. No wonder cardiovascular disease (CVD) is the #1 killer among most developed countries. Also, lawyers and paralegals are among the top occupations that are most likely to cause a direct threat to one’s health. Fortunately, there are specific things you can do that will help you reduce your stress at work and better cope with it.

Here’s How:

1. Improve your time management and organization skills.
Of the many things you can to in this area the best ones include getting a to do list that works, learning to say “no”, asking for help when you need it, stop setting unrealistic goals for yourself.

2. Relax and breathe deeply.
Whether you are feeling overwhelmed by the amount of work you have to do or if an attorney is “in your face”, a good thing to do is to “breathe through your nose”. You can’t get as worked up if you force yourself to breathe through your nose. Your body simply can’t maintain the same level of energy without that extra oxygen you get when breathing through your mouth.

3. Take more breaks from your work.
Even a five-minute break will help. Get away from your desk. Go for a walk – outside is better, but just moving around helps. Getting more exercise in general will help you reduce your overall stress levels and that will make it easier to reduce your stress level at work.

4. Lighten up.
Trial prep mode can mean serious mode, but you should still try to smile more. We all know laughter reduces stress. You will be amazed at how much more pleasant the people around you are when you make an effort to be pleasant yourself.

5. Prepare your meals.
Stress can be induced when we are craving food and don’t have time to go buy or make something. Always prepare your meals in advance. You will save money and most likely eat more nutritious food.

6. Don’t sweat the small stuff.
Realize that there are some things that just aren’t worth worrying about and there are some things you just can’t change. Don’t waste time stressing over the things in either category. There will always be fires, take them out one at a time.

7. Get more sleep.
During trial prep you can easily work 20+ hour days and it is sometimes inevitable. If you do not get sufficient sleep, you cannot perform in court like you should. If you are “hotseatting” the case, imagine what happens when you bring up the wrong exhibit when the attorneys ask for it? What about the wrong video testimony? Even worse, what about something that was not admissible? If you get enough sleep you will be reducing your stress, increase your energy level and your ability to concentrate.

8. Give yourself time.
There is almost always a rush during trial prep and it will most likely always happen. Realize that nearly everything will take longer than you anticipate. By allowing yourself enough time to complete tasks, you cut back on anxiety. In general, always give yourself at least 25% more time than you think you will really need.

9. Leave your work at home.
Avoid the temptation to complain about your workload once you get home. Your home is a sanctuary and your loved ones are blessings. Do not contaminate both by unloading your complaints about work on them. Instead, use the time it takes to get home to debrief and meditate about your problems, then just let them go.

10. Hire some help.
Avoid trying to do everything by yourself. If you overload yourself, you might make mistakes. You also want to use your time most efficiently, so if you have a stack of exhibits that need bates numbered and scanned or you need help with creating your attorney’s PowerPoint for opening/closing, consider hiring a trial consultant. They will help you Stress Less, Win More .

Noah Wick, M.A. is a trial consultant at Prolumina which specializes in Jury Consulting, Trial Graphics, Litigation Support Services and Trial Technology. He can be reached at nwick@prolumina.net or 206-622-6700.

Written by both Craig Smith and Dr. Jonathan Lytle.

Preparing a witness to testify well, whether in deposition or in the courtroom, is a fundamental element of all good litigation, regardless on which side of the well you’re on.

It is universally acknowledged that a courtroom is an unnatural and uncomfortable communications environment – all the more so in deposition where the rules allow questioning attorneys to get away with what judges would likely not allow in court.  Thus, whether a witness has testified or been deposed multiple times, or whether it is his/her first venture into the labyrinth of examination and cross-examination, the experience may range from mildly intimidating to terrifying.

While the rules of the courtroom and deposition do differ somewhat, there are three key principles that, when recognized and well employed, lend well to good outcomes in either forum.  Applying these principles will significantly increase the likelihood of a consistent, credible and trouble-free record if witnesses are properly informed and prepared.

Authenticity

Authenticity is the bedrock of credibility.  Once involved in any litigation, whether as a party or a witness, the normalcy of day-to-day life changes whenever anyone is in the presence of others involved in the litigation.  They are enveloped in what we refer to as the “litigation bubble,” where nothing is the same as it is outside that bubble.  The paradigm changes every time a lawyer walks into the room.  The witness, no matter how hard he or she may try to ignore it or to act normally, is under the microscope, even with his/her own attorneys.  Since trial lawyers generally have little, if any, contact or communication with the witness outside of the litigation bubble, most lawyers have no idea of what the witness’s normal and natural conversational style is, outside of the bubble – and it is almost always very different than any case related conversations that may take place between them.  The witness, even on his or her own turf, is guarded, assumptive, and often skeptical of the whole process.  Thus, having someone who is not a lawyer, but someone who is skilled in basic communications principles and techniques, conduct an “out of the bubble” conversation about non-case related subjects of interest to the witness provides a more accurate picture of how the witness will be perceived during examination and cross.  An assessment of how the witness communicates under normal, every-day circumstances, with family, friends and even strangers, is essential to capturing and capitalizing on the individual’s authenticity.

A word about impressions:  Most lawyers today recognize the value of videotaping depositions, and it is in this environment that authenticity is most vulnerable to the tactics many attorneys use to undermine authenticity and to provoke damaging impressions that are captured forever on the video.  Thus, when one’s own witness is being deposed and videotaped, making sure that the witness is well prepared and stays well within his/her individual sphere of authenticity, is essential.  We all know that first impressions are extremely powerful. Research Psychologists use a “thin slices” paradigm to study the impact and accuracy of first impressions, wherein participants are given short video clips of an individual and asked to rate him/her on a number of personality traits. Results consistently demonstrate that people are remarkably accurate in judging others based on first impressions from video clips as short as 5 seconds. Of particular relevance to witnesses, one study found that people evaluate another person’s trustworthiness and kindness, with great accuracy, in as little as the first 20 seconds of an interaction. Furthermore, these evaluations were based entirely on nonverbal behaviors.  Even a very brief video clip of a witness in deposition can adversely trump hours of live testimony if the impressions formed watching three minutes of video deposition testimony is inconsistent with how a witness may present on the stand, even when the deposition testimony is not, substantively, terribly damaging. The bottom line is that jurors will judge your witness almost immediately (whether they are live or on video) and that those judgments may be driven by your witness’ nonverbal behaviors just as much as what they are actually saying. That’s why we focus on “how” a witness presents as much or more than on “what” the witness presents.

Calm, Confidence and Control

It has been said that the lawyer with the nicest witness almost always comes out ahead.  It is so easy for anyone in the litigation bubble to become defensive and/or combative when they feel they are under attack or feel threatened. No threat to human nature is more unsettling than the threat of being perceived as not being credible, deceptive or ill-informed – it challenges the very essence of who we are as individuals.  The tendencies to second-guess, or to over analyze what is happening often brings out behaviors and expressions that are atypical of an individual’s normal, authentic patterns of communication.  Witnesses who would be far better off simply admitting the truth – that they don’t know, or can’t remember – often resort to rambling, making things up, speculating, guessing – or worse, lying – all in an effort to satisfy the need to be seen as credibly informed (even though, in reality, they may not be), as they come under scrutiny and attack in the unnatural and often threatening experience of testifying.  The objective of all good witness preparation is to help the witness get to CALM, CONFIDENT, and CONTROL.   Calmness begets confidence – confidence begets control – and control of the conversation is a must in testifying well, whether in deposition or trial.  Special exercises can be used when preparing witnesses to testify that will help them understand how important it is to slow down and to control the tempo of the conversation.  These techniques can give them the confidence to push back and hold their own with calmness and with courtesy, even when under fire.  Instructions on how to use the clock to their advantage, and impressing on them the importance of careful word selection will allow them to return every hot serve that comes their way with precision and strength.

Critical Listening

When preparing witnesses, I explain to the witness that what will take place in the courtroom, or in a deposition, is nothing more than a conversation between two or three people, one or more of whom will be sure to have different ideas, motives and opinions than the witness, just as in any conversation one might engage in in any other setting.  I suggest that whenever the witness hears the legal terms “examination,” and “cross-examination” that they substitute in their minds the word “conversation,” and I remind them that the exchange will be a conversation over which they can have absolute control if they employ a few very simple tools:

• controlling the tempo of the conversation; keeping the conversation focused on “my [the witness’s] truth” – (what they did, what they saw, what they said) – and not being dragged into the minefields of speculation, or the weeds of the extraneous
• making their answers clear, simple and powerful through careful word selection
• and most importantly, CRITICAL LISTENING.

“Hearing” and “listening” are not the same, especially in litigation.  Good witness testimony is ultimately less a function of what is said, than what is heard – and not only what is heard, but that which is carefully listened to, understood, processed and, like an ace serve off an opponent’s racquet, returned with strength and precision.

Critical listening involves isolating each question from the previous question(s), and not analyzing or anticipating what the following question might be, or where the attorney may be going with this line of questioning.  Every question must be treated as an island, each with its own answer, independent of any other question or answer.  Critical listening is hearing, processing and focusing solely on what that particular question is asking, and then taking the time to select the few best words that precisely respond to only that specific question, and which never cross the line of “my truth.”

Witnesses can be taught how to listen critically without too much difficulty and in a relatively short period of time, but it takes good instruction and practice.  When they are listening critically, their ability to focus on the key interrogative of the question is enhanced – what is actually being asked, and how it matters in the context of the case.  They are better able to recognize traps, misrepresentations, ambiguities and questions that may contain erroneous information or assumptions which can lead to imprecise or damaging answers.  They are enabled to counter infectious words and language employed by questioning attorneys by using well thought out and carefully selected words and safe harbors that will frustrate any opposing attorney’s efforts to confuse or to wrest control of the conversation from the witness, causing them to misspeak.  Very specific techniques can be taught in a relatively short period of time that can empower the witness to hear each question for what it is, to isolate it from prior and anticipated lines of questioning, and to foreclose on attempts to lead the witness down dangerous paths, putting the burden on the questioning attorney to ask honest and reasonable questions that can be answered with confidence.  Critical listening, more than anything else, allows the witness to establish control of the conversation early on in the process and to maintain control throughout, testifying in an authentic, credible and concise manner.

While critical listening is essential in the courtroom and in deposition, and of particular benefit to witnesses under fire in litigation, critical listening is a skill that can enhance every aspect of our lives, both professional and personal.  In a high tech world of tweets, texts and rapid fire conversations around fast food and fast-paced schedules, critical listening is a practiced art, and one that is, unfortunately, rapidly fading from our cultural and conversational landscape.

Critical listening may not only be what gives your witness the calm and confident control over the conversation in the courtroom that might help to win your case, but it may also allow us all to achieve the full measure of understanding and fulfillment in every relationship we enjoy, in and out of the courtroom.

I look forward to working with you and Prolumina again.

Kayann Fitzgerald
FOSTER PEPPER LLC

Long a leader in the Northwest, Prolumina expanded into California in 2010 with an office in Los Angeles.  After deciding to add to their presence in the state, Prolumina was thrilled to find that Ms. Cassinelli was available.  Her deep and longstanding relationships with litigators throughout the state made her a natural fit for the company.

Ms. Cassinelli has helped literally hundreds of clients throughout her career.  She enjoys providing law firms with the tools to make their case and tell their story, and her clients call her time and time again when they need trial graphics, strategic consulting or trial technology support.  Denise knew that Prolumina was right for her as soon as she found out they were expanding into San Francisco.  “I knew from working in the industry so long that Prolumina was always top notch,” Denise said.  “I really respect the deep knowledge they have from working on cases for more than 30 years – that’s tough to beat, and I’m glad I can bring that experience to my own clients now!”

Chris Hazelmann, Principal at Prolumina, was impressed by Denise as soon as he met her.  “After my very first conversation with Denise,” he said, “I called our Managing Director back in our national headquarters and told him he had to call her because I was convinced she was the one to propel us to success in San Francisco.”  Mr. Hazelmann’s faith in Denise has already been rewarded, as she brought her first case to Prolumina within days of officially starting: assisting a client of hers on an intellectual property matter before the ITC.

Founded in 1979 and headquartered in Seattle, Prolumina (www.prolumina.net) sets the standard for responsive, effective use of Litigation Strategy, Trial Graphics, Litigation Support Services and Trial Technology for winning performance in litigation. Their client-focused approach and forward-looking strategies translate as custom, cost-effective solutions that support your team and create a lasting impact on your judge and jury.

Prolumina and their consultants have been part of some of the most high-profile litigation in our nation, including: Vioxx, HRT, BP Oil Spill, Pain Pump, Children’s Motrin, Welding Rod, PPA, Diet Drug, Asbestos, Sub-Prime Mortgage and many more.  For more information on Prolumina in California, please contact Denise Cassinelli at (415) 404-2734 or dcassinelli@prolumina.net.  To speak with someone at Prolumina’s national headquarters, please call Noah Wick at (206) 826-9945 or nwick@prolumina.net.

In Re: Phenylpropanolamine (PPA) MDL

Hon. Barbara J. Rothstein commenting on courtroom technology.

Two teams of attorneys, one defense and one plaintiff, independently conducted their own focus groups and brought their results to the mediation table. In both groups, the majority of participants found the defendant negligent. However, the plaintiff-run focus group awarded damages that were 20 times larger than the defense-run focus group! Given that all participants heard about the same case, how can this be? Which results are “true” and reflect what the actual jury will decide? The answer, most likely, is neither.

Two common types of small-group, pre-trial research are focus groups and mock trials. Although focus groups and mock trials have many similarities, focus groups are generally shorter in duration and less complex in scope than mock trials. Focus group research involves brief presentations of a case to a panel of surrogate jurors. The presentations can be tailored to focus on a few specific themes, facts, key witnesses, demonstratives or arguments. In contrast, mock trials usually involve more extensive presentations of the case, including key testimony, exhibits, demonstrative evidence, and arguments to the surrogate jurors.

The purpose of pre-trial research is to discover the range of attitudes, beliefs and experiences that jurors will bring with them into the courtroom. By studying a representative group’s response to a case, attorneys are able to understand the underlying emotional and psychological motivations of potential jurors. Oftentimes, critical viewpoints or reactions that would not otherwise have been anticipated by the trial team are identified during pre-trial research projects. In understanding these motivations, a trial team is better prepared to address and plan for how a jury will absorb the information presented at trial.

Yet, small-group, pre-trial research is only as effective as the way it’s conducted. Unfortunately, many attorneys do not utilize trial consultants who are trained in the methodologies that ensure quality results. Attorneys who carry out their own research may save on expenses, but will surely sacrifice quality information in the process. Here are 5 common mistakes made in pre-trial research:

Mistake #1: You try to “win”

A focus group or mock trial should never be about “winning.” Ultimately, the goal is to test the worst case scenario for your case. Failure to give equal or more weight to the opposition is foolish and counterproductive. For instance, if you are representing the defense, then participants need to hear a plaintiff rebuttal. If you are representing the plaintiff, and he or she does not present well, then participants need to see that.

Unfortunately, most attorneys are so focused on preparing to “win” during the actual trial that they fail to recognize the ways in which they tilt the scales in their favor when they conduct their own research. Psychologist Robert Rosenthal demonstrated the effect of experimenter expectations in a number of influential studies in the 1960s, including one in which teachers were told that a particular group of students had a higher likelihood to achieve than another group of students. In reality, the groups were made up of a random assortment of students. At the end of the school year, the “high achievers” scored significantly better on a standardized performance test. The teachers’ expectations of high performance actually led to high performance.

What is most interesting about expectation effects is that they occur at a subconscious level. This is why strong methodology employs objective, third-party experimenters to conduct the research. Focus groups and mock trials should strive for that same objectivity.

Mistake #2: You fail to gather data during the presentations

During the focus group or mock trial, there are many opportunities for incremental data gathering. Between presentations, for example, participants are able to
give you a wealth of information about what they have heard so far, both about their general attitudes and about specifics of the case. Unless you ask for that information, useful data will remain undiscovered.

Good research uses a diverse methodology to gather this data, including closed and open-ended questions, along with Likert and Semantic Differential scales. Furthermore, survey items and questions must be carefully written and ordered so as to not elicit biased responses. Asking participants about the weaknesses of a presentation immediately before asking which side is “winning” will result in drastically different responses than had you asked about the strengths of the presentation.

Mistake #3: You fail to let the participants deliberate

Even in small focus groups, participants should be allowed to discuss the evidence and attempt to reach a consensus verdict before a facilitator joins the discussion. Observing an uninterrupted deliberation is often the most useful benefit of small-group research, as it gives attorneys a view of how jurors may process the case information. For deliberations to be most authentic, attorneys working the case and trial team members who presented the case should leave the room during the discussion. An objective facilitator, such as a trial consultant, should remain in the room with the deliberating group, to ensure that misinformation about the case does not derail the discussion. Attorneys can view deliberations via closed-circuit video or from behind a one-way mirror.

Mistake #4: You have too many participants in one group

Just because the actual jury will have 12 members, does not necessarily mean your research groups should have 12 members. In fact, not only are smaller groups more cost-effective, but research also shows that participants are more involved and more candid in smaller groups. For focus groups and for mock trials, a group of 5 to 9 participants is ideal. If you recruit 24 participants, divide them into 3 groups of 8 instead of 2 groups of 12 for better results.

Mistake #5: You assume the results are predictive

The most well-controlled, well-conducted small-group research projects can yield different results with any given group of people. Of course, this occurs because individuals are unique, have different experiences and attitudes, and are often unpredictable. Small-group research results should be taken for what they are: a look into how everyday people may view the case. As your sample size increases, you can reasonably increase your confidence in the results. But even if you “win” your case with 10 different groups of participants, do not assume that the next group (your actual jury) will see things the same way.

In sum, the results of pre-trial research can help you revise your opening statement and evidence presentation strategies in critical ways. Some of the useful information focus groups and mock trials may reveal are:

• Participant’s baseline attitudes and beliefs
• Participant’s perspective of case strengths & weaknesses
• Specific issues and problems central to the case
• A detailed range of responses that may be expected in trial
• The impact of specific themes and order of evidence
• Analysis of the issues and factors that resonated with jurors and influenced their decisions
• The persuasive impact of witnesses
• The persuasive impact of exhibits, demonstrative evidence, and presentation technologies
• Strategic themes that provide jurors with the organization structure which will optimize the probability of a favorable verdict

Computer programmers and statisticians often talk about “Garbage In, Garbage Out.” Poorly conducted pre-trial research, like bad data input into a computer, will produce erroneous results. In the current economy, many attorneys are conducting their own research to pinch pennies. However, these results are often tainted by one or more methodological errors. Avoiding these common pitfalls is one of many benefits a trial consultant can bring to you and your team.

Jonathan M. Lytle, Ph.D. is a trial consultant at Prolumina in Seattle, Washington. He can be reached at (206) 622-6700 or jlytle@prolumina.net