Psychodrama is popular in trial lawyer circles. This weekend it is taught at our trial lawyer convention. I do not attend. Happily.
I don’t care for the term psychodrama. I’ve heard many good reviews from friends and colleagues. I know many of the people who teach it. But honestly, just hearing the word psychodrama causes a bit of a nose wrinkling reaction deep within me.
Please don’t hate me or think any less of me for being honest about this. Psychodrama is the “in” thing. More power to everyone who can learn from and benefit from these techniques. But for me, it is just too much hullabaloo. Too much in the brain. Too much technique. Too much consciousness for that which is in the intuitive realm.
One of the most wonderful but also emotionally horrific opportunities we have as plaintiff lawyers, is to learn about our clients and their families and friends. We get to hear their private stories. We get invited into their homes and hearts. It is humbling to know how much we are trusted. They know we are there only to help. And that we will never hurt them. But still we are lawyers. Doing a job.
When I interview survivors and other people who have been personally touched and affected by a loss, I do not do psychodrama. I do not go through a checklist. I do not have an advance plan. I have no outline. I do not have a specific end goal. I tell them that I am Oprah and they are my guest. But there is something else that goes on and the best way I can describe it is to talk about Star Trek.
Now I am not Spock emotionally. Just ask my kids. However, I do appear to have developed a Spock like trait. It is the Mind Meld.
The person I am interviewing will sit down. We will get as close as feels right. Lock eyes, and go to wherever we end up going. We are human to human. There is no artifice. I don’t mind if we are speaking in present or past tense. It doesn’t matter if we are physically acting out what happened, or just telling the story. Our emotions are connected. There is no judgment. The anxiety fades away.
This is not to say that we shouldn’t learn techniques like psychodrama if they help.
But for me, I’m all about the Mind Meld.
There is an after effect however. When Spock came out of a Mind Meld, he felt a bit faint. This is true also for me. Mind Meld is an almost out of body experience because it is all about the other person. Every ounce of my being is focused on seeing, hearing, understanding, comforting, acknowledging, validating and being fully there with the other person during our journey. When we separate from this bond, recovery is needed.
And so this weekend, after the convention, I drive to a small city. Engage in four Mind Melds. Then needing to decompress, find the local theater through Fandango. And watch Trainwreck for the third time. Amy Schumer is hilarious.
Photo: The theater
Children may be scared to testify in a trial. But being on a witness stand can also be empowering for them. They are having their day in court. They are participating in an integral part of our country’s foundational structure. They are helping the process of determining the truth.
In this case, the trial judge does an excellent job of ensuring that the child feels safe and is as comfortable as possible. Ellie the courthouse dog is brought in by a prosecutor. When the child’s name is called, he walks up to the stand with Ellie. She lays at his feet. And when the child becomes a little anxious, a timeout is taken so he can pet her.
We are calling the child in this wrongful death case. He is an only child. His father was a single custodial parent. We will not have him on the stand for long. But the jury needs to see who will be effected by their ultimate verdict. Our goal is to get them to truly see this young boy.
The child testifies haltingly at first. The questions are gentle and benign. One after the other. Moving along. Not letting silences linger. Eventually he relaxes, opens up, gets a little anxious, pets Ellie, and wins our hearts. Here is his testimony:
6 THE COURT: Are you P?
7 THE WITNESS: Yes.
8 THE COURT: Hi, I am Judge Middaugh.
9 THE WITNESS: Nice to meet you.
10 THE COURT: Nice to meet you too. Look
11 who you have got over there. I am so jealous, is that
12 just the most fabulous dog? She is a cutie. So I’m
13 going to let the jury know that there is the dog in
14 the courtroom just to be here with P, just in
15 case we have a jury that’s afraid of dogs. Because
16 that happens sometimes. So just to let them know that
17 there will be a dog here with P. So Gabby, if
18 you would not mind telling the jury that P is
19 here and he has the courthouse dog with him.
20 Okay. And we can get the jury.
21 (In Court/Jury In)
22 THE BAILIFF: Please rise for the jury.
23 THE COURT: Okay, have a seat. So ladies
24 and gentlemen of the jury, as Gabby told you, we have
25 this young gentleman who is going to be testifying
1 today. And we have with him, we call her the
2 courthouse dog, but she actually belongs to this woman
3 who works in the courthouse. And the dog’s name is
4 Ellie. Right? And Ellie sometimes comes and helps
5 out when we have children testify. And I will tell
6 you honestly, I try to get her up here as much as
7 possible. So if you want to look at Ellie, you can
8 stand up and take a look, she is right there.
9 Otherwise she is very quiet and she just hangs out.
11 So P, how old are you?
12 THE WITNESS: 10.
13 THE COURT: All right. Do you know what
14 the difference is between the truth and a lie?
15 THE WITNESS: Yeah.
16 THE COURT: What’s the difference?
17 THE WITNESS: Well, the truth is when you
18 are telling, you know, that’s, that’s not made up.
19 THE COURT: All right.
20 THE WITNESS: And a lie is something that
21 you just made up.
22 THE COURT: Okay. And do you know why you
23 are here today?
24 THE WITNESS: To —
25 THE COURT: You are going to testify, talk
1 in court, right?
2 THE WITNESS: Yeah. About my dad.
3 THE COURT: Yes.
4 THE WITNESS: (Inaudible).
5 THE COURT: Okay. And when you are in
6 court or do you tell the truth or is it okay to lie?
7 THE WITNESS: Tell the truth.
8 THE COURT: Okay. So I will ask you
9 today, do you promise to tell the truth today? What
10 are you going to say, do you promise to tell the
12 THE WITNESS: I promise to tell the truth.
13 THE COURT: Okay. If during sometimes
14 when questions are asked if you don’t understand the
15 question, will you promise me that you will ask the
16 lawyers to say the question again in a different way
17 so you understand it?
18 THE WITNESS: Yes.
19 THE COURT: Okay. All right. Then I will
20 take that as having sworn the witness in. And the
21 first thing you are going to do is you need to state
22 your name, your full name, for the record?
23 THE WITNESS: My name is P
25 THE COURT: All right. And I’m going to
1 tell you that this little thing right here, sometimes
2 placed over there, that is our microphone. And we are
3 recorded courtroom, so everything is being recorded
4 and taken down when you say, so you need to make sure
5 you answer all the questions out loud and with words.
6 No nodding of your head and that kind of stuff,
8 THE WITNESS: All right.
9 THE COURT: Okay. Go ahead. Whoever.
10 DIRECT EXAMINATION
11 BY MS. KOEHLER:
12 Q. All right.
13 MS. KOEHLER: I did want to introduce the
14 guardian ad litem. Ms. Fargo West is here, Your
15 Honor. (Inaudible).
16 Q. (By Ms. Koehler) For the record can you tell
17 us your full name and your address?
18 A. My name is PH and I don’t
19 know my address.
20 Q. Do you know where you live?
21 A. I live in Conconully in the Winrow
23 Q. And who do you live with?
24 A. I live with my Aunt Mary?
25 Q. Cousin — lives — who live (inaudible)?
1 A. I’m not sure.
2 Q. Is Mason here today?
3 A. Yes, he is.
4 Q. I’m going to ask you some questions and if
5 you don’t understand the questions, what are you going
6 to do?
7 A. I’m going to ask you.
8 THE COURT: You are going to ask her. If
9 you don’t understand the question, you are going to
10 ask whoever asks the question if they could say it a
11 different way so you can understand it, okay? All
13 A. Yeah.
14 Q. (By Ms. Koehler) So can you tell the jury
15 what your birth date is and how old you are?
16 A. I am 10 years old and my birthday is
17 December 9th.
18 Q. Where were you born?
19 A. Where was I born? I was born in Spokane.
20 Q. And how long did you live in Spokane?
21 A. I’m not sure.
22 Q. Did you like Spokane?
23 A. Yeah.
24 Q. What did you like about Spokane?
25 A. I loved that I grew up there.
1 Q. What are some of the favorite things that you
2 have done in Spokane?
3 A. I don’t know.
4 Q. Do you go to school?
5 A. Yes.
6 Q. Where do you go?
7 A. I go to Sunrise Elementary.
8 Q. What grade are you in?
9 A. Fourth.
10 Q. What’s your favorite subject?
11 A. Reading.
12 Q. What’s the subject you hate the most?
13 A. Math.
14 Q. What kind of books are you reading in the
15 fourth grade? Do you have chapter books?
16 A. Yes.
17 Q. What’s the series that you like, do you have
18 captain — inaudible)?
19 A. Definitely not. I don’t — I just read
20 like — kind of like comic books, kind of any kind of
21 (inaudible). I really like big chapter comic books
22 where people are just talking. And I read like
23 (inaudible) like actual pages like that. Fourth grade
24 Eagles, I think.
25 Q. All right. Tree House, do you read Tree
1 House books?
2 A. Tree House books? No, I have heard of those.
3 Q. How many kids are at your class?
4 A. 32.
5 Q. So how long have you gone to this elementary
7 A. I’m not sure.
8 Q. Do you remember going to a different
9 elementary school or have you always gone to
10 (inaudible) school?
11 A. I (inaudible).
12 Q. Where was the one you used to go to?
13 A. (Inaudible) over in, over in Warden.
14 Q. Pardon?
15 A. Warden.
16 Q. Who were you living with when you went to
17 this school?
18 A. My cousin Mason, me, and my Aunt Mary.
19 Q. Same people?
20 A. Yes.
21 Q. Which school do you like better?
22 A. Warden.
23 Q. Why?
24 A. Because I do. I miss all my friends there
25 really bad. I thought I would be able to — I thought
1 we — (inaudible), I thought — I don’t know. Well, I
2 like that better over there, because it’s really hot
3 over there. Because I (inaudible) no more there.
4 Q. Did you miss a lot of your friends when you
5 moved back to live with your dad in Spokane?
6 A. Not that many actually, but yeah.
7 Q. Did you develop more friends when you went to
8 school than before you started school?
9 A. Can you say that again?
10 Q. That was a weird question, wasn’t it?
11 Before you started school did you live in
12 a neighborhood with lots of kids, or you mentioned
13 living with your dad?
14 A. I was more (inaudible) living with my dad.
15 Q. Tell us about that? What does that mean?
16 A. I mostly stayed in the house and watched TV.
17 Sometimes I was just hanging out with my mom and my
19 Q. What would you do with your mom and dad?
20 A. Watching a movie. Play like Starrysky or
21 something. It’s kind of hard to remember it’s been a
22 while ago.
23 Q. I heard something, your uncle testified about
24 was it frisbee ball?
25 A. Frisbee ball.
1 Q. What is frisbee ball?
2 A. It’s where — it’s where you get to have like
3 frisbees and they have got a point on them and they go
4 really, really far. You put your finger inside and
5 throw them as hard as you can and try to — it’s like
6 this metal pull thing where — where it’s a like a
7 metal pull and then there is a whole bunch of chains
8 in the square box thing. And you have to try to throw
9 it so it can hit the chains and then the — you have
10 to come to the next one, the next one, next one, next
11 one, and then you — you have a course and then
12 that’s — (inaudible).
13 Q. How did you like to do that?
14 A. I did it quite a bit. I did it with my dad
15 and this one guy named Scotty.
16 Q. So what other kinds of games like that did
17 you do outside?
18 A. Oh, well, I know I was going to school.
19 There was one kid that would come over for a little
20 bit and my dad had like this nerf, nerf gun. It was
21 of a missile one kind. He would shoot it up in the
22 air and then we would try to catch it. And whoever —
23 whoever would catch it, it would glow. And if it hit
24 the ground it probably won’t glow, it probably
25 wouldn’t, because the hitting the ground it would
1 light up. Like the corner or something would go hum.
2 Just kind of lay there.
3 Q. Did you do things like going hiking or would
4 you say you were an outdoors guy, or more of an urban
6 A. Well, we went like there was like this — me,
7 I lived in like this apartment place. And we went —
8 went down like this trail, there was a bunch of trails
9 down there. We — oh, yeah, we went to — we went to
10 this one place called it’s water park. We went
11 swimming there. We just — we went to parks too, so.
12 Q. Your dad, were you pretty close to your dad?
13 A. Yes. I was very close to him.
14 Q. Can you tell us a little bit about that?
15 A. Well, um. [can’t speak]
16 Q. So your Uncle Mike said that you like to
17 barbecue a lot. Did you go over to his house for
18 barbecues and things like that?
19 A. Yeah. When we went over for barbecues
20 sometimes — most of the time it would be for like
21 holidays, birthday parties, stuff like that. Or
22 sometimes in the summer, if it was just really hot.
23 It would be just like a hot weekend, we would go over
24 there. That was like the main place where everybody
25 was going to go. And like that, like on holidays,
1 like on Christmas.
2 Q. Christmas where everybody —
3 A. I don’t know it was just a family
4 get-together sometimes.
5 Q. Can you tell us who you all is in your family
6 so we can kind of get to know your family a little
8 A. My cousins and —
9 Q. The people that you would spend time with.
10 A. Oh, I would spend time with this girl named
11 Hally. And it was my uncle, my uncle’s daughter. I
12 would — I would sometimes — sometimes when everybody
13 was inside, I would go outside and be playing soccer
14 with her. And — and —
15 Q. That’s okay.
16 A. Huh?
17 Q. You getting a little nervous.
18 A. A little bit.
19 Q. Take a drink of water and pet Ellie. I think
20 she wants her tummy rubbed. She is on her side. Go
21 ahead, you can do that, no problem.
22 A. You are very interesting.
23 Q. Good.
24 A. That’s very good.
25 Q. So would you mind sharing with us how it’s
1 been for you when your dad got sick, do you remember
3 A. Yeah. I remember.
4 Q. And do you feel that you are comfortable
5 sharing with us about that?
6 A. Sure.
7 Q. Sure. Tell us about your dad getting sick.
8 That you — (inaudible)
9 A. Well, I kind of went through a lot of
10 sadness, because when my dad would talk to his friends
11 that he would be like so the doctor just told me like,
12 Oh, you got cancer. (Inaudible) but he actually, he
13 actually got — he was supposed to die in 2 months.
14 But he spent (inaudible) he passed away. But he was
15 sick. He had like this big puffed up thing on his
16 neck. It was — it felt like a big ice bag on top of
17 it. And, oh yeah, me and him couldn’t pay the rent
18 and stuff, so we just went over to our friend’s house
19 for a little while. Just moved to his friend’s house
20 for a little while. And there was there was two
21 teenagers, and a boy and his sister, and they were —
22 well, in that same picture. I would hang out with
23 them when my dad was like downstairs watching TV. But
24 when my dad would be out or doing something, like
25 going to the store or the hospital whatever, I would
1 be like, I would be either be playing with those two
2 or I’d rather be playing on my, my (inaudible).
3 Q. So your dad let you know what was going on?
4 A. Um, well, I only pretty much heard like when
5 he would talk to his friends. The stories, I would
6 get what he was saying.
7 Q. And figured it out, you know?
8 A. Yeah. Yeah. And my mom would tell me that
9 your dad is pretty sick, you know, but.
10 Q. Were you really, really, really happy that he
11 got to live longer than they thought he would?
12 A. Definitely, yeah.
13 Q. So what did you do to to make — make those
14 times really special for your dad, what did you do to
15 cheer him up?
16 A. Well, I didn’t really, at that time I really
17 I was like — I never really — I always forgot. I
18 always forgot that he was sick, because we were always
19 having so much fun. So I honestly didn’t know until
20 when I was at school one day and it was like three —
21 maybe a month away from school summer. And he said we
22 are going to go camping that summer, because we didn’t
23 get to do it the last summer. So and then — and then
24 my mom told me my dad has to — it’s time for him to
25 go over to (inaudible)So I got pretty sad.
1 Q. So he — again, anytime you don’t want to
2 answer my questions, it’s not going to — it’s okay to
3 say for you to say, I don’t want to answer. I don’t
4 want to invade your privacy too much. But if you are
5 okay talking then we will be here, you know. We
6 really want to hear from you what you want to say,
8 A. Okay.
9 Q. Still doing okay?
10 A. I’m fine.
11 Q. Want to pet her one more time?
12 A. Sure.
13 Q. Okay. Were you able to say good-bye to your
14 daddy before he died?
15 A. The last time I said good-bye was — was I
16 can’t really remember, but I remember that it was the
17 last weekend that he spent at home, you know.
18 Q. What did you guys do the last weekend?
19 A. I can’t really remember. A little hard to.
20 Q. Yeah. So —
21 A. I kind of feel it was like just the same
22 ordinary thing. That’s one of the things why I was
23 crying so much that he passed away.
24 Q. So obviously you were very sad when he passed
1 A. Yeah.
2 Q. Have you been able to talk to somebody about
3 how to get through this time?
4 A. Yeah. I have had — I don’t know what they
5 are called. People who help, that you can talk to.
6 Q. Counselors? Yeah?
7 A. Counselors. I have had counselors to — I
8 still have a counselor actually.
9 Q. Is that a her or him?
10 A. It’s a guy, yeah. And he is sort
12 Q. Do you talk to him whenever you feel like it,
13 or do you have appointments?
14 A. I have like appointments, I don’t know when
15 the appointments are. But like on Tuesday and
16 Fridays, like that. (Inaudible).
17 Q. So you do you see him a couple times a week,
18 or once a week?
19 A. Once a week definitely.
20 Q. Do you feel like that you have — do you
21 really like — I mean do you feel like it’s a good
22 idea that you have counselor?
23 A. Yeah. Because then I get to express my
24 emotions and then he sends me back home. Then I will
25 be able to talk to somebody instead of like being in
1 my room and crying.
2 Q. So you seem like you are one heck of a well
3 adjusted 10-year old. And I guess my question is, how
4 have you been able to just stay so cool?
5 A. My dad was all about that I guess. I guess I
6 kind of just learned from him.
7 Q. Tell us about that?
8 A. To pull through. To kind of pull through
9 whatever happens. What happens, to just to keep on
11 MS. KOEHLER: Thank you, very much.
12 THE COURT: Any questions?
13 MR. SMITH: No questions, Your Honor.
14 THE COURT: Any questions for P from
15 the jury? You guys just want to pet the dog don’t
16 you? Okay. Well, that means you are done. And so
17 you can go and I guess you can take her with you,
18 though I am very sorry to see her go. I don’t think
19 she wants to leave.
20 UNIDENTIFIED FEMALE SPEAKER: I think she
21 just wants to stay.
22 THE COURT: I think she wants to stay here
23 in the courtroom with us for the day.
24 UNIDENTIFIED FEMALE SPEAKER: She can stay
25 a while.
1 THE COURT: No, that’s okay. You can take
2 her, you can take her home. Thank you, very much,
3 P. You want to walk her out? I bet you can?
4 Oh, she really does want to stay here. That you very
5 much for letting her visit with us.
6 THE WITNESS: Yeah. Really, thank you.
Transcript from 2014 asbestos wrongful death trial.
Photo: Noelle celebrating her 21st birthday with a visit to the animal shelter in Nashville.
The defense is bringing in a memory expert from back east. To say the surviving brother’s memory is not real.
This is an asbestos-mesothelioma trial. The exposure happened in the 1970s. The only witnesses who can identify the product are the brother (who was then eight) and the deceased.
We call the brother early. The plan is to inoculate against the defense by proving his clear memory. We have to do several other things as well. Such as establishing enough evidence to overcome a motion for directed verdict.
The jury is solemn. There is tension in the court. The witness is nervous at first. Settles in as soft routine questions surround him. And then, the moment comes when you can feel the jury turn towards instead of away from our side. The moment comes – with the Story of Yakkie the Goose.
20 Q. So let’s move up to a year to, let’s say you’re around
21 six years old. Can you tell us a story about when you were
22 six that really sticks out in your mind?
23 A. Oh, well, we went fishing one time. We seen some baby
24 geese. It was (inaudible), I believe. We wanted — me and
25 Jimmie wanted one of the geese. So my dad went out there
1 and he caught one. We ended up taking it home, and we had
2 it as a pet.
3 Q. Well, now how did you carry the goose — was it a
4 goose or was it a baby goose?
5 A. It was a baby. It was tiny.
6 Q. Do you remember details about how you even got it
8 A. Well, put it in the car. Me and Jimmie — we wanted
9 to hold it but my mom said no. You’re not — I think she
10 was scared we were going to squish it. She held it on her
11 lap on the way home. It pooped all over her lap, so we kind
12 of found that funny.
13 Q. And you would have been around six?
14 A. I believe so, yes.
15 Q. And tell me about the goose — I think — tell me what
16 happened to the goose? Tell me about your life with the
18 A. We had him, I believe, at least a year. He grew up to
19 probably — I don’t know, three foot tall. Never could fly,
20 though. He used to chase us around the yard. He slept in
21 our house. We would have to keep him on the back porch
22 because of my father and mother, but — he would sleep with
23 us on occasion. He’d actually play hide and go seek with
25 Q. How did the goose play hide and go seek?
1 A. Well, he would stick his head under the couch
2 cushions, and my mom would, you know, say go, hide. And
3 then she’d say, go get ’em, Yakkie, and he would just pull
4 his head out and scream. He wouldn’t look for us. He would
5 just scream until we came out.
6 Q. You named the goose?
7 A. I did not. Jimmie did.
8 Q. Yakkie?
9 A. He got to name it. Yes, Yakkie. Because he was
10 always yak, yak, yak.
11 Q. So was Yakkie around by the time of the incident that
12 we’re talking about today?
13 A. No.
14 Q. Okay. So this would have been before your grandma.
15 A. Yes.
16 Q. So sometimes it seems like you have a fairly clear
18 A. Yes.
The full direct exam is attached. You have to imagine the bantering tone that exists between attorney and witness. The beautiful simplicity of the messenger and his message. And the bemused delighted laughter from the jury.
Transcript: The goose
Photo: The girls at ages 8, 6 and 3 (with their dogs Coco and Tucker) still remember hanging out on the front lawn that summer.
Am resting on a sandy beach somewhere nice and warm. Every so often someone gives me a tasty little treat and a sip of ice water. The breeze gently rustles my fur. Seagulls caw in the background.
Ellie – time to wake up, she says.
No. No. Am in a wonderful place. About to take a dip in the warm water.
Sigh. Open one eye and look at her. Her blond hair is in a pixie cut. Eyes twinkle behind hip glasses. Today she’s wearing a tailored gray pantsuit. Quite mod and stylish. She’s a prosecutor. This means she puts bad people away. To me she looks like Tinkerbell. Her name is Paige.
Come on Ellie we need to get going…
Get up as slowly as I can. Make sure she knows how happy I was until her interruption. Am wearing my snappy blue vest. She clips on a leash (not that I need one), and we head to the elevator. Get out on the seventh floor. Stroll down the hallway. Meet another lawyer. Her hair is long, dark and curly – kind of like Medusa. She seems alright to me.
Medusa leads us into a courtroom that is not in session. It is being used as a waiting room. And there he is – the little boy. He smiles at me.
While Paige walks me over, I check him out. Excuse the cliché, but this boy is as cute as a button. I want to lick his freckled face silly. But know my manners. He’s wearing a button up black shirt and a skinny tie. His hair does that whoop de whoop thing that you can do with some sort of styling product if you’re cool. He’s cool.
He pats the top of my head and my sides. Nice. I lay down and Paige shows him the way to my heart. Rubbing my belly of course. Oooh, that is the best. Even worth waking up. Make friends with him a little longer, and Medusa says – okay time to go.
I know what this means. Put on most adorable facial expression. Follow the lawyers, little boy and his family members. Walk across hall into Judge Middaugh’s courtroom. Paige and the little boy walk up to the witness box. I know he’s scared. Can feel it. The jury box is filled. The judge and her staff are up on a pedestal. Lots of dark suited lawyers line tables. They all smile at us. Do my best to look coy.
The little boy sits down. I lay down at his feet. Paige is perched behind us. The judge asks the little boy if he knows what it means to tell the truth. He does. Medusa starts asking questions.
Little boy is anxious. So I do my best imitation of a slug hoping it will calm him down. Periodically Medusa asks if he’d like to pet me. Of course he says yes (who wouldn’t). And as the questions continue, he relaxes. Yup there it is – he just smiled. The questions continue, he doesn’t want to answer a few of them and doesn’t have to. He deserves to pet my stomach, so I roll over.
Then it’s over. But first, Paige gives the little boy a tasty treat. Which he delicately pops into my now happy mouth.
Stroll out of there.
Back in the elevator.
Back to the prosecutor’s office.
Lie down under Paige’s desk.
Find my way back to that sandy beach.
Photo: Ellie and Paige at the King County Courthouse in Seattle.
This is a trial diary excerpt from 2011:
Four more witnesses testify – but only want to talk about one of them. The 38 year old daughter.
How do you turn a witness into someone a jury will connect with. Well, for starters you stop believing you have magical persuasive powers. Presenting a family member means getting out of the way so they can show their love. It means creating a safe place. It means embracing the human condition. Not in a data collecting, data spouting lawyerly way.
Experiencing Michelle’s testimony is like being tossed about in an emotional cyclone. She starts off friendly and awkward. But in a few minutes we are swept along. It is charming, gut wrenching, sweet, horrible.
Michelle has a scrunched up pile of Kleenex that she smooshes into her eyes. She doesn’t dab at them. She smooshes hard. Keeps her hand pressed there and continues talking without apology. She isn’t crying for empathy. She is simply crying.
I would like to cry with her. Cannot and will not. Eyes well up. Stay filled to the brim. And do not leak out.
Some of the best speeches I’ve ever heard have been at funerals. Think about the ones you’ve attended. People from all walks of life stand to speak and out flows prose that touches us to the core. Rarely are the good ones written down. The bereft simply speak unhesitatingly from the heart.
This is what Michelle does.
When she is done I feel weak. Like Whoopi Goldberg after Patrick Swayze’s ghost inhabited her body. Like JZ Knight after she channeled Ramtha. You get the idea. The best way to put on a family member isn’t by carefully crafted questions. It involves simply being the vessel.
Photo: Jataun, my god daughter.
Drive up to the gate. Pay $15 for a parking pass. Drive 100 feet forward and turn left. Find a space and park. Am barefoot. Slip on shoes. Exit car. Walk around the side of the building. Open the doors. Am now inside the UW school of law. Head down the hallway to room 138. Open the door. It’s a big theater styled space. Walk down the stairs to the front. Give Bill Bailey a hug. He’s a full time professor there for now. This is the big lecture class for the trial advocacy program.
Students wander in. Set up their laptops.
For the next hour Bill and I scare them witless. We undo their preconceived ideas about what direct exam should look like.
Me: Getting the exhibits in – that’s worrisome for a student/new attorney. Making sure the outline contains all the necessary questions – that’s doable with preparation. You are all smart. You are all in law school. So you will know all the little bits and pieces you need to get in. That isn’t the tough part.
Students: Uhhhhh. Blank faces.
Me: There are four words that we use when conducting direct of a fact witness. They are lazy, passive, unexciting words. You will find yourselves using them in court. Perhaps even for years. One day, you will remember we talked about this in class. And maybe be able to change this pattern.
Students: Look at me like a jury during the first few minutes of voir dire when you can’t read anything about them. Except their lack of connection with you.
Me: Direct exam isn’t about just getting the evidence “in.” It isn’t solely an exercise in data entry. The jury will tune out if you don’t hook their attention. And they will rule against your client unless they can see that your side is correct. It isn’t up to the witnesses to do all this on their own. It is your job.
- If you heavily prepare your witness in advance with a memorized script – guess how believable that testimony will be at trial.
- If you just lay everything out in a linear, logical, fastidious, monotonous fashion – guess how many jurors will still be listening to the testimony after three minutes.
- If you have witnesses testify about lists of information without adding any color, warmth, humanity or context – guess how impactful that testimony will be.
- If you take on a passive role and expect the witness to win over the jury every time – guess how often that will happen.
Bill and I engage the students. We role play, practice asking provocative questions, talk in present tense, use diagrams, and act out stories.
Some of the students are now relaxed, smiling and engaged. Though I can’t quite turn the gentleman in the tie and lilac shirt seated in the front row who quite clearly suspects I’m bonkers.
Hug Bill goodbye. Walk up the stairs. Back down the hall. Out through the doors. Around the side of the building. Hop into car. Take off shoes. Drive to gate. Give secret code. Get $15 back.
Post script: So what are the ten lamest words used to conduct direct exam; “And then what happened…”
Photo: A chiropractor showing the jury the proper way the plaintiff needs to lift to protect his back while working in construction. Problem is he has a knee injury too. So now the jury can see the dilemma.
We can’t help it – us lawyers. We have to go to school for so long – it’s no wonder we stop talking and thinking like real people. We say “prior” for before and “subsequent” for after. We love words with lots of syllables. Because this is what law school drilled into us.
In trial, we distance ourselves when we fail to communicate on a real person level. That’s the beauty of having witnesses who are not experts. The jury can understand them.
Sometimes jurors will discount testimony by a friend or family member. They assume the person will say anything to help the plaintiff.
It is different when a co-worker (n this case a supervisor) testifies. A supervisor has the power to hire or fire you. Even if they are friends they still have the j.o.b. of putting the company first when it comes to business. Jurors generally view work related witnesses as being more objective than others.
In this case the supervisor is used to show: 1) plaintiff was a good worker and person; 2) the defendant was underhanded in ordering roofing supplies; and 3) if the company had known this wasn’t a proper roofing job – they wouldn’t have provided materials.
This is the transcript from the trial testimony.