October 1, 2020

Podcast - Listen for the Song in Your Witness' Head

Powerful Witness Prep Podcast Series

In the latest episode of his "Powerful Witness Preparation" podcast series, "Listen for the Song in Your Witness' Head," litigation attorney Dan Small discusses the all-too-common disconnect between what a lawyer thinks their witness is thinking and what the witness is actually thinking. He explains that the key to building a successful relationship with a witness is to understand your own assumptions, learn their assumptions and then try to pull the two closer together. He uses Los Angeles trial attorney Sidney Kanazawa's metaphor of the song playing in our heads as a way to understand this gap: Both witness and counsel have a song in their heads, and each thinks the other knows that song. However, as a 1990 Stanford study literally showed, these songs amount to random clapping unless explained. Lawyers have to take the time to learn the witness' perspective, understand it and try to change it if necessary. Only by listening for the song in their head can counsel begin to effectively prepare a witness.

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Dan Small: You walk into the conference room to start preparing your witness and you wonder, what is he or she thinking? What are their expectations, their misconceptions? Put another way, what is the song playing in their head? And what are the chances that it's the same song as the one playing in your head? One of the first and most often ignored challenges for effective witness preparation comes in three steps. First, understanding your own assumptions. Second, learning your witness' assumptions. And third, trying to pull them closer together. In an earlier podcast, we talked about the perception gap between lawyer and witness perceptions of what each other wants.

The Song in the Witness' Head: Bridge the Perception Gap

The great Los Angeles trial lawyer Sidney Kanazawa has a different take. At a seminar he put on for the honorary society the Litigation Counsel of America, he talked about listening to the song in each of our heads. Each of us has one in almost any situation, the sum of our learning, experiences, beliefs and fears. Kanazawa talked about it eloquently in the context of the jury, trying to get them to view a case with the same perspective, the same song as we do. But the lessons are equally appropriate for witness preparation. Lawyers and witnesses walk into the preparation room with dramatically different perspectives. How could it be otherwise? The witness' ideas about lawyers and what they want don't come from following you around for a couple of weeks, and they don't come from seeing how conscientious and hardworking you are. They come from TV, movies, internet, friends, etc. where conscientious doesn't sell. All of them are tilted towards the dramatic and towards the scandalous. Your ideas of the witness also come from often inaccurate sources — bosses, documents, other lawyers, etc. — tilted in ways you often have no clue of at the outset. You are trying to understand what each other is saying without knowing what they're thinking. It's a tough challenge.

As a small demonstration, Sid Kanazawa uses an experiment from a 1990 Stanford University psychology Ph.D. thesis by an Elizabeth Newton. I've used it with several lawyer groups I talked to about witness preparation around the country. It's a surprisingly simple exercise and a lot of fun, but also a revelation. We divide people up into pairs, the As and the Bs. The As, or the Clappers, are asked to think of a popular song that everyone would know. Actually, Miss Newton gave out lists of 25 songs. The lists themselves are interesting. What songs did everyone know back in 1990? The list includes "Rock Around the Clock," "This Land Is Your Land" and "Gilligan's Island." But it can be anything, it can be patriotic songs, popular songs, it just has to be a song that the As are pretty sure that the Bs will know. By whatever means the Clappers come up with their song, they then, without saying or singing anything, clap out the rhythm of the song. The Bs, or the Listeners, listen to the clapping. After 30 seconds or so, the Clappers are told to stop, and the Listeners are asked to guess what the song was. In a seminar room full of lawyers it's quite a sight to watch. Here's the point: The Clappers have the song in their head, they're hearing it in their head while they clap, they know the song. It's an easy song, and they assume that the listener knows it, too. They assume that the listener is hearing that same song. Well, guess what? They're not. In the Stanford study, over 50 percent of the Clappers believed the listeners would easily guess their song. After all, everyone knows the rhythm to my song, don't they? Therein lies the problem — it's their song in their head. The listener may know the rhythm, but only if they have that song playing in their head. Otherwise, all they hear is a bizarre Morse code of clapping with no context, no music, no guidance. They have no idea what the song is. In the Stanford study, while over 50 percent of the Clappers were sure that the Listeners could easily identify the song, in fact, only about 2 percent of the Listeners actually could. Think about that: 50 percent of the Clappers were sure the Listeners would easily identify the song, but only about 2 percent of the Listeners actually could.

You walk into that witness preparation room with a song playing in your head. Maybe it's "I just want you to tell the truth." Maybe it's "The problem with this case is such and such." Those are not the songs playing in the witness' head. Maybe their song is "All the lawyers I see on TV are sleazy" or "All the lawyers want is to win." Or maybe it's just "I can't tell this guy everything because whatever the reason" and on and on. The only certainty is that each of you will have different songs and different perspectives. Whatever you say to the witness will only sound like random clapping unless and until you take the time and effort to understand his or her perspective. There's never enough time in our busy lives to linger on something as amorphous as perspective. So we jump right in to what needs to be done, what needs to be said. We know what we think, and we know what we want from the other person. But that knowledge can be both a blessing and a curse, a curse and a challenge, because it's too easy to assume that the other person shares that same perspective. Let's be clear — they don't.

If you want to effectively prepare your witness, take the time to find out what their perspective is, to understand it and to help change it if you need to. The sounds of random clapping will not accomplish what you need to do and will not help your witness. Listen for the song in their head.

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