Darl and Andrew

The following is a transcript of Episode 16 of Championing Justice. You can listen to the full episode here, or watch it on YouTube.

Darl: Thank you for tuning into the Championing Justice podcast. My name is Darl Champion. I’m the founder and owner of The Champion Firm. We are a personal injury law firm based in metro Atlanta. Today’s guest is Andrew Caple-Shaw. 

Andrew is the managing partner at ACT of Communication where he leads a team of trial consultants who help lawyers and witnesses communicate effectively, persuasively and confidently in the courtroom. And Andrew will talk more about what he does in detail, but I can tell everyone how I came to meet Andrew was through witness preparation, and that’s one of the services that he provides is working with plaintiffs and other witnesses to prepare them for deposition testimony and trial. Thank you for being on the podcast today, Andrew.

Andrew: Glad to be here.

Darl: So tell us a little bit about your backstory, because what I like to do is start off with what the person does and then lead up into how did they get here. So you have an interesting backstory. So…

Andrew: Yeah, I go with weird, interesting is sort of the nice and polite way to say strange. I started out like so many lawyers, sort of that kid that was into smart things and maybe didn’t fit in with all the other kids.

Darl: Wasn’t good at math.

Andrew: Was not good at math. Actually, I was great at arithmetic. Once we got to calculus, I just quit.

Darl: See, I didn’t even make it to calculus.

Andrew: You didn’t even make it to calculus?

Darl: No. I struggled past algebra.

Andrew: They thought I was bright and then calculus happened, but, and my parents not really knowing what to do with me as an elementary school kid, had this idea that we will send ’em to the theater. People take anybody, and they did. And that was really the beginning of the journey for me. I worked my first professional union theater gig when I was eight years old, and I did that all the way through taking off to go to college and went to school in Los Angeles with the idea of becoming a professor. I wanted to teach. I love thinking about things. I’m the only guy in Los Angeles who didn’t have a day job to follow their acting dream, something to fall back on. I was the guy when I got there. I’d never worked as a server or a cashier, I’d just been an actor.

So I was chasing my dream of doing academic things. And my day gig was TV shows. Interesting. So I worked in TV and film, and this will kind of be relevant when we talk about the work later. I discovered as I got into my early twenties that I was a really terrible actor. I had been a great actor as a kid because when you’re a kid but as an adult, there’s a lot of introspection.

There’s a lot of looking at the emotional truth, what’s going on inside you, how do you interact with the world, how emotionally available are you? And there’s a tremendous amount of technique that goes into it. And so I went through a period of the older I got, the worse I got until I started training and learning the tools and techniques. Then I started having breakthroughs. I had a good career in TV and film, but I was always a working actor. I had agents that wanted me to become a celebrity, but I was always just, I just wanted to work doing charactery stuff.

Tell us some of the stuff you did. The favorite gig I had, and the one that I have the most sort of lawyer nerd street cred is I had a recurring couple of episodes on the West Wing, which was just a blast. It was my favorite show at the time, and I worked with the Republicans so it didn’t spoil. I’d had other experiences on TV shows where my favorite TV show got spoiled by the fact that I was on it. And this one, I got to do the show. I got to be a part of it. I got to work with Steven Root, the stapler guy from Office Space. I love that guy. So then I did the Berio military shows, the Jag, NCIS, I was on and off of Days of Our Lives as five different characters over a span of a decade. If you hit your mark there and you’re reliable, they bring you back.

Not about you’re like Joey from Friends, right? I actually did an episode of the Friend Spinoff Joey. Okay. So yeah, that’s like meta. I’m so Joey. I was actually on Joey playing what Joey would’ve done on Joey. But yeah, so really lucky.

And I got into union leadership because I was just a working actor and I moved up the food chain there just by process of elimination because the Screen Actors Guild at the time was a multi-billion dollar corporation being run by literal drama queens. And so I ended up getting to a really high leadership position there and I had a thought, I’ve got all these lawyers working for us and I find what they do fascinating. I thought about going to law school and then the writer strike hit not this most recent one, but the two before that I think. And I didn’t think that my faction within the Actors’ Union is going to be able to prevent an actor strike.

So I came up with a plan to get a law degree in a year and a half, which meant I would really only have to miss out on a few months of work, kept working in TV and film while I was going to law school, came out, went and practiced law. Discovered very quickly that I was very, very talented on my feet arguing a case because what is a trial? But a monologue followed by a series of improv games followed by another monologue. The problem is it turns out that the practice of law does not mostly take place in a courtroom in front of a trier of fact. The other aspects of the law didn’t fit my personality. And gradually people would start saying, Hey, can you help me with my case? Can you do that stuff you do? And so I’d help other people out.

I’m teaching CLEs and it was Andrea Zuckerman from 9 0 2 1 oh and Felicity’s therapist who each Amy Aquino and Gabrielle Cart, who individually had said to me, you need to meet these people in California who are doing something like you do.

And that was when I met Alan Blumenfeld and Katherine James. And if you don’t know who Katherine James is, you should, she really is witness preparation technique as we know it today. And if you’re studying any of the trendy techniques right now in how to communicate in a courtroom, I guarantee you it’s like the coaching tree. All coaching trees go back to three coaches. She really is the peak because it’s her work that eventually makes its way to the trial lawyers college. It makes its way into some of the premier education environments like Stetson, the idea what she called be yourself, everybody else has taken, right?

You can kind of see shades of that in something like say Trial by Human or some of these big forces. What Alan and Katherine their journey was, they started out teaching classes for lawyers that led to the lawyers saying, Hey, help me do the delivery on my case. Well, the delivery starts tying into the writing and Katherine’s a playwright. So then they start doing theme and theory and writing the scripts for your opens and your closes.

But what they ultimately figured out when the lawyers would say, come help me with my witness, you did such a great job with me, was that the story begins with the witness and that we can take all of these brilliant pattern strategies that like David Ball has or Rules of the Road. I mean, they’re all fantastic people that I think are brilliant, but they’re just tools in a toolkit. And you’re applying those techniques to the reality, the truth of what you have in the witness. And so your case narrative strategy, a lot of the times people start with the technique book and then they try to cram their witness into the technique book. And where we live in witness prep is we start with the witness and then we go grab the techniques that we need to fit that witness’s story. So 80% of the work we do now is on the witness prep side.

Darl: That’s great. I mean I think a lot of what you’re saying makes sense because you don’t want to present a case that’s inauthentic and have the jury get the sense that you’re trying to fit a square peg in a round hole. And you’ve got this plaintiff on the stand. And I’ll tell you, I mean the one thing I’ve learned about juries, and again we talk about juries, is if it’s some special body, it’s a group of people. But when those people come together and just regular people, they’re really good at sniffing out BS. And when something appears to be manufactured or fake, they’re going to hammer you on it.

Well, let me ask you about that then. So a lot of your work has been, as an actor, how do you take your background as an actor to then transform that into a genuine authentic story from the witness as opposed to it being coming across as acting?

Andrew: So, wow, that’s a deep question. I mean, that’s a four-hour question. I’ll try to do it in two minutes. It has to do with the different ideas of what acting is and the way that I all acting technique really traces back to a Russian by the name of Stanis Slosky, who in the late 19th century pioneered the techniques that would eventually inspire pretty much every Oscar Emmy Tony winner except for the occasional flukes we all know exist.

But all of the greats are studying techniques that trace back to this origin. And the best way to explain it is I can cry and probably not anymore, I haven’t done it in so many years, but by manipulating the tear ducts in my eyes and I can make a wailing noise that represents what it is to be sad if I do that, you will know that there’s something not right, that I’m not really emotionally upset.

It will look like a fake cry. The only exception for this is some sociopaths can get a real cry in essence. But what acting is is about doing work inside of my head and inside of my body to take myself to an authentically sad place so that I cannot stop myself from crying. And the idea of method acting gets a bad rap because it’s not, I want everybody to call me Mr. Lincoln while I’m on set.

It’s more I want to tap into the truthful and sincere emotions that Abraham Lincoln was feeling in that moment. And there’s a variety of techniques you can use, substitution techniques, things that would affect me. You can use emotional preparation. There’s a lot of techniques that you can use to get that emotional connection. And so what we’re talking about when we’re talking about acting work applied to law, some of it is what we would call outside in work.

You use a rising inflection, it sounds like a question, right? That’s outside in just pure vocal technique work. But a lot of it is what we would call inside out work. It’s looking into your heart to find the emotion. So in a case, for example, and I was talking to you about a particularly difficult case before we started the podcast, that case makes my stomach do something. So what I’m doing when I’m preparing for law is, and when I’m preparing for a jury or for trying to get a settlement when I’m trying to argue in a mediation, is I’m trying to find that thing that makes my stomach go, we call it the pinch in the out Stanford Meisner great acting teacher.

When I feel that pinch, I have to react to it. I have to figure out what is at the core of it and I have to communicate it to the other side so that they feel that same thing in their stomach when this case comes around. So it’s not as simple as sort of like what are you doing on the acting front? Because it’s almost like saying how do you build a house? Well, you’ve got to have a million different tools, carpenter’s tools, you’ve got to know how to mix concrete. There’s just a variety of tools that you’re using that we are trying to hand. We’re trying to pass two lawyers throughout their careers or that we’re using with witnesses to address their unique and specific issues.

Darl: So when we talk about witness preparation, we’ve got deposition testimony. We’ve got trial testimony. Y’all do both, right?

Andrew: Yes.

Darl: I imagine you prefer to get involved as soon as possible so that the trial testimony is consistent with the deposition testimony.

Andrew: Here’s the way I like to think of it. You want me to get involved at the deposition phase because if I’m not involved at the depo phase, I’m having to undo what went wrong at the deposition. There’s really two areas where you want to bring someone like me in either you’ve got a lot of money on the table and so what it costs to do this work is nominal compared to what’s at stake. Or you’ve got a witness that has real problems and is going to zero out an otherwise decent case. In both of those scenarios, you need to be thinking before of either elevating the case or stopping the zero.

And so if you’re getting to trial, you’re going, yeah, well, we got this depo where they kind of said this thing that’s not really good for us. It’s like, okay, I’ll work with you and we’ll sit down and we’ll go over the language and we’ll talk to the witness to figure out what they were really trying to say and what they really mean. But that’s a lot harder than just listening to them getting the words that they want to say that they’re trying to communicate, getting those originally and getting those in the depo.

Darl: Right. Right. Well, tell us a little bit about your methodology. So a lawyer calls you up and they say, Hey, I’ve got this case. The plaintiff things could go one of two ways in their deposition, but it’s a tragic case and we want you to be an active participant in preparing them. What’s your methodology?

Andrew: Both with the lawyer? When I’m starting the case and with the witness, my methodology is 90% listening. It sounds so simple, but listening is actually, it is difficult. It’s an art form. It takes us years to train a member of our team before we can put them in the field. And a lot of the times, half the people we train we’re letting go after we’ve put all that time and energy in them because listening is a very difficult skill.

And that’s why we only work with actors because what actors are training to do, there’s a school of acting that says acting is not acting. It’s reacting that acting is rooted in and then just letting what happens happen once you’ve anchored in the character. So I’m starting with, I want to know from the lawyer, why are you calling me? What are you worried about that I need to come address?

What do you see that you’re trying to elevate? And the way I’ll phrased is, what are your goals and concerns for the case and the witness? And I’m listening to the lawyer and most of the times I’m blessed. I’ve inherited great lawyers on our roster. If I had to name the top 10 lawyers in the country right now, I’d say eight of ’em are people that we get to work with. So I can listen to that lawyer and they know exactly what’s going on. If it’s a less experienced lawyer, I can listen to them and I can read based on how they talk about a certain area, like, okay, this is where we’re going. Next step is we sit down with the witness. Let’s assume it’s depo prep and I’ll go ahead and give away some of the secrets. Please use these, a lot of our stuff, Katherine James’ book, AAJ Press, Harvesting Witnesses’ Stories.

Just go read the book. But we always start with what questions or concerns do you have about having your deposition taken? And then we shut up. All right, what lawyers like to do is lawyers like to come in and fix it. Well, I’m concerned about this. Okay, well I’ll take care of that. It it’s not problem. They like come and tell you, right? Yeah. They come in and the lawyers talk at you and the answer really a lot of the time is to just kind of let them be the guide and let them get it out. It’s almost like if you’ve done domestic cases at any point in your career, sometimes they just need to cry it out or I call it the oven on theory of witness preparation. If you leave the house, you think you’ve left your oven on, you get eight hours of work in the day, you get nothing done.

You’re worried about the oven. If however you go home, turn your oven off, come back, you have six productive hours. So we’re going to take care of whatever’s going on in that witness’s brain first, and we’re going to do that interactively by letting them explore it. One of the most common things we get is, I don’t want to say the wrong thing. Lord’s like, well, you’re not going to say the wrong thing. I’m going to tell you this. It’s like my response is, well, what do you think the wrong thing is? Tell me about the wrong thing. I just don’t want to mess it up. I don’t want to mess it up. Okay, well tell me what messing it up would look like. Well, I don’t really know when you play it out. And eventually they’re going to take you to the root of their anxieties. And a lot of the time it’s going to be a journey that it looks like clinical psychology. It looks like a therapy session because we’re going into why are they reacting the way they are to the things that they’re reacting to.

And so out of the box technique wise, I’m listening and then I’m following their lead. Now in PI case, following their lead usually means we’re going into damages right away because that’s where their heart is. They’re completely emotionally wrapped up in. So we’re going to live in damages. We may live in there for two sessions before we come back and start talking about process and how everything works. Sometimes people want to start with process first. If you get an engineer, an architect, an auto mechanic, about somewhere between five and 10% of the population, they want to do process and mechanics first because they can’t open up and start talking until they have comfort, knowing where each lawyer is going to sit and what the structure of the question. And so that

Darl: Makes sense. So putting ’em at ease first and then how do you dive into damages? So all the ways the injuries have affected somebody, how do you elicit that and get the witness or the plaintiff in particular to think about it?

Andrew: That is if you’re an actor and you come to work for us after a couple years, you’ll have the answer to that question. I can give you some cheat…

Darl: So it sounds like it’s the definition of obscenity. I know it when I see it. I can’t say it, but I know it when I see it. You just…

Andrew: The answer to that question is I have a large toolkit, most of which I inherited from Katherine, and I was only able to inherit from Katherine because I had the foundation from my training as an actor. But it’s, it’s really two things. One is shutting up, shutting up and listening. But when listening, acknowledging and giving them a comfortable place, it’s not, I’m thinking about whether or not the statutes of limitation is run on that thing that she just told me. It’s, hold on, tell me about it. Tell me what was that like?

The other is choosing the questions strategically based on the person that you’re dealing with, the damages you’re dealing with, the behavior that you’re seeing. Because the difference when someone has, let’s say a typical neck compact case, someone’s got neck pain and they’re saying, and I can’t even mow my yard. The difference between how does it feel to not be able to mow your yard and you can’t mow your yard? What’s that? Those two questions, which sound like basically the same question, will yield you wildly different results, wildly different results.

Darl: How so? Which one’s better?

Andrew: First of all, there is no better. There’s a situation are we in and what’s the personality type that we’re dealing with? That’s sort of where the training comes in, is knowing which one to pick. Generally speaking though, if you’re doing this by yourself and you’re wanting to steal some wisdom, what’s that? It’s a technique that Robin Wisher, a brilliant, brilliant Canadian attorney, has adapted the work of the clean language theorists, the clean language folks. It’s a technique that began in England in Australia that was originally used in counseling for troubled teenagers.

And it’s the use of metaphors, by the way, that’s another one. Ask me about metaphors in a minute. But it’s the use of things like metaphors because emotions are sublingual. And so when you say, what is that like? They’re either going to go to a metaphor or they’re going to go to a root description of an emotion. When you use the word how that triggers a part of people’s brain that is in the ballpark of how does that work? And it’s going to take them, they’re going to go looking for a technical explanation instead of an emotional experience. So what is more emotional? What is that like? It’s that matters, not the what.

Darl: Got it.

Andrew: And again, if you can ever see Robin Wishard talking around the country, it’s really interesting what Robin found by doing this research and I didn’t even really understand the work that she was doing in the beginning. I get it now. What she was doing was a technical version of what we were doing naturally. So clean language, the most wonderful form of clean language is to just take what the other person has said, repeat it back and give them affirmation so it was painful as hell, painful as hell, and then they’re going to go off to the races.

Alright, so repeat repetition with the rising inflection is a great way to get someone to open up. So clean language is about how do we keep from injecting as the questioner anything into the mind of the answerer? Because what the answerer has is the powerful thing that we’re wanting to get out to share with the jury because that’s the most true, true thing. And the truth is always going to win.

The word theater comes from the Greek, it’s the seeing place, it’s the place you go to see the truth. Alright? And that’s where when the acting coming over into witness prep or attorney training, people are like, oh, you teach people how to be fake? You teach them No. What we’re teaching them to do is we’re teaching ’em to take all the fake that they have on and strip it away.

When we sat down to do this podcast, I was making the joke about how I have to be shot from above so that you only see one chin, but not so far above that you see the shiny spot. I’ve got this little bit of gut that’s hanging out and I was thinking about that coming to do this podcast, the idea of good acting, of good theater is stripping away all those things that I’m thinking about so that I’m completely emotionally connected and baked into say the conversation that we have.

That’s the tool that we’re talking about with a S. We’re trying to strip everything away to get to that core emotional experience because that’s the damage. That’s what the jury doesn’t get. And another example I give, and this is where the idea of what was it like? We’re asking for a parallel example. Okay, I will tell witnesses when I’m using a technique that I probably won’t have time to go into today. Imagine a really high pitch screeching noise. Okay, you can do that unpleasant high pitch. Now I want you to imagine I brought a chalkboard in and I’m going to start at the top…

Darl: I’m already cringing.

Andrew: Yeah, I could see it on your face. The camera people are cringing. They’re just like, oh god, no. So that idea that I know inherently nails on a chalkboard that I feel that in my body we’re after nails on a chalkboard instead of just a high pitch noise. Got it. That’s what the difference between clean language exploration and directed questions is all about.

Darl: So one question I have about witness prep, and this may be the same whether you’re doing it or an attorney’s doing it, or maybe it’s different. Are you doing multiple sessions and kind of small bites so the witness can digest it? Are you doing the marathon session where they’re basically drinking from a fire hose? What’s your preferred approach for that?

Andrew: Covid is the gift of a lifetime. For us, we used to be hopping on planes because the lawyers insisted it has to be live, it has to be in person. And we would try to dissuade them with covid, the ones that refuse to do it virtual finally saw what we see, which is virtual is for us with our technique is better. They’re in their house a lot of the time. Sometimes they come into the lawyer’s office, us they’re able to. The thing I love about virtual, and by the way I’m talking plaintiff side. I mean I’m assuming your audience, I mean I’m a shameless…

Darl: Mostly plaintiffs, maybe some defense attorneys that want to defect. Maybe somebody trying to get some intel on what plaintiffs are doing.

Andrew: If you’re looking to defect, I’ll go straight into the camera, come on over, we’d love to have you. We love Zoom. First of all, you see things in people’s houses that are a gift, that are an absolute gift. People open up more when they’re in their home environment. Now you have to make sure that there’s no kids to be taken care of. There’s no pets. Hilarious story about a cat being thrown across the room during a deposition. Not surprised. That’s not even one of our crazier stories. Although it is just funny for the sheer comedic, you know…

Darl: I’m surprised the cat didn’t attack somebody.

Andrew: Oh god, it’s a case. I’m going to have to send this podcast to the person who was involved in that case. So there’s that. But also a lot of the work that we’re doing is damages work. It’s either damages or likability. Getting to know the best version of that person. You’re building trust over time you’re planting a seed.

So if you’re working until they’re kind of burned out, and sometimes we will set aside three hours and sometimes we’ll only go two and be like, Hey, they’re done sex assault cases. If we go an hour and a half, I’ll be surprised we’re going to set six or seven sessions with a sex assault case because they may show up and be like, I just don’t want to work today. And we’re like, okay, we’ll schedule it another day. But generally speaking, we probably want to do anywhere between two and four sessions we’re working and then planting a seed and then coming back.

So one of the things that we’ve historically done is homework assignments. And I know Mitnick has been promoting one of our homework assignments a lot lately, which is the idea. It’s one of the homework assignments that’s geared towards creating awareness. Okay? Because what happens in most of these cases is you get someone who’s suffered a catastrophic or chronic, even low level chronic pain is just truly maddening. But what happens is there’s a new normal, right? They’re not thinking, you ask ’em, well what can’t you do anymore? It’s like you can’t ride roller coasters. It’s like how often did you ride roller coasters?

Darl: Well here’s the other thing I hear all the time: I can’t do laundry. Did you really enjoy doing that? That’s a benefit, right? I mean, nobody wants to do laundry.

Andrew: But first of all, if it’s someone for whom that was their contribution to their family, it’s huge.

Darl: I get that every single time. And I’m like, let’s talk about some other stuff besides the laundry. But I hear that it’s the rollercoasters, hiking and laundry.

Andrew: So rollercoasters and hiking, that’s the big things I’m missing out. Laundry is the one where I think the problem with you’re saying with laundry is I need more than laundry. Laundry is in a category of things that if it is one brick in a wall built of those things, what laundry ends up being is, and I don’t mean to gender stereotype here, but I can’t do laundry. I can’t stand up and cook for prolonged periods of time. My kids used to eat healthy, now they’re eating dino nuggets. Their laundry’s not clean, they don’t have that clean feeling. I don’t feel like I’m being a loving mother anymore. And the only way you get that is you give that homework assignment that is geared towards identifying those things. And as they do them, they go, wow, look at all this that I’ve lost. And then you’re going back to our clean language and going, alright, when you look at that wall, that wall you’ve built of all these bricks, how do you feel in general? Well, I feel like I’m disappointing my family. Now we’re at the break now that stone cold emotionless, this woman’s kind of what Amy Partick, the jury consultant referred to as the witch with a B. Unpleasant person.

We now see underneath that tough exterior, the core of this is this huge loss of identity and they only see that through the homework assignment. So that’s where the time is that we’ll have that list and they’ll go through that list and then partway through that list, they’ll break down, they’ll fall apart.

And again, the nuance in why you want to work with someone like us and why we’re so picky about who’s on our team is how you communicate the construction of that list to one witness versus another can change your outcome. I remember early on I gave that assignment to somebody in a generic way without taking into account their personality. And what I got was someone came back and was just happy as a clam. I was like, what is he? They’re like, you’re color coded. I’ve got 432 things. These are the ones that have to do with this. These are the ones that have to do with this. And there was no emotional connection, no emotional breakthrough at all because list assignments for that person triggered that sort of OCD part of their personality where they just got joy that they completed the assignments. Like okay. So we had to go back to a narrative writing assignment for that person to get our big breakthrough.

Darl: Got it. That makes sense. I feel a little attacked by the Dino Nuggets comment, by the way.

Andrew: Are you giving your kids dino nuggets or were you raised on dyno nuggets?

Darl: Well, both. I mean maybe that’s wrong with me. Yeah, I thought that was just normal. I mean they say organic on the label, so I figured they were healthy.

Andrew: Do they really say organic?

Darl: Well, probably the ones I buy. I have no idea. They’re shaped like dinosaurs and my son likes them.

Andrew: I got a seven-month-old. So I’m under this delusion that we’re going to continue to just be completely healthy and we’re going to cook everything from scratch. And I’m told I’ve got about three more months left before everything comes scratch.

Darl: Give it some time, give it some time. So when are you recommending that lawyers work with somebody like you or somebody else on your team versus doing it themselves?

Andrew: I think the two determining factors, well, I’ll give a caveat. You had me thinking about this earlier. Number one is you’ve got a witness who is what we would call a nightmare witness. There is something about them, either they’re just not likable and that’s a big part of what we do.

We find one of the things you do as an actor is it’s the idea that I’m not creating a fake character. That I have a thousand different versions of myself alive in me and I’m stripping away to the version of me. There’s an asshole that lives in here. When I get an asshole character, I’m not pretending to be an asshole, I’m just finding my inner asshole.

Darl: Some people are naturally better at that than others.

Andrew: And the jokes right themselves here, if only someone from my team or my wife was here to help in this moment. And so likability is part of it. Inability to take feedback on how to handle the question answering process. They’re just weird. They’re just not, people aren’t going to relate to them. So if you’ve got a nightmare witness that is going to kill the case no matter what the value is, get someone like us in here to try it.

Darl: It could be plaintiff or a close family member that’s going to be an important witness, like a spouse as well.

Andrew: Yeah. Now with spouses, we start getting tricky into discoverability questions. That’s why I love with, usually we’ll have either a spousal privilege or we’ll have, sometimes I’ll be like, you need to make a consortium claim, but they’re terrible in this state. I know they’re terrible in this state. You’re going to drop it, but it’s going to give you the privilege attach so that I can work with this dumpster fire of a husband. So sometimes, and we can go into when the BNAs are more important, really important thing if you’re working with someone that’s not us who’s in our field, make sure, and this is where I think having a law degree at the top of the food chain and our team now really helps make sure you understand the discoverability of the dynamic between the witness prep person and the witness.

Because if I prep a before and after witness, that could be discoverable. And if it’s a high enough dollar case, some of the bigger firms are going to come in and say, who did you work with? A plaintiff, it’s privileged in the room and I’m working for you. Then we’re okay. But when we start getting the outside, it’s just technically with a b and a. They could be deposed on what you said to them, right? Because that’s not a privileged conversation.

Darl: So you mentioned nightmare witness, right? Somebody that’s just weird, you’re just kind of worried about ’em. And those are all options or factors to take into account. Obviously case value is one of them.

Andrew: Case value is the other one. Sometimes I got this great plaintiff and you’re going to call me in and I’m just going to say, look, you know, got a great plaintiff. I think she’s great. We just have to make sure that the sweet, wonderful lady doesn’t have, the lawyers I’m most scared of on the other side are the nice ones. I’m not worried about the attack dogs.

I always say the best defense lawyers have the best refrigerators. Witness comes in, it’s like, can we get you some Icelandic water? Would you like a frappuccino with just a hint of they want to be your best friend? And so sometimes you’ll have an amazing witness and when I’m coming in and going, Hey Darl, you’ve got a great witness. We just need to make sure that when the defense lawyer says, yeah, but are you sure it was a hundred percent red? I mean, I know sometimes I see a light and I think it’s green and maybe it was red and all of a sudden your perfect witness gives you a liability death blow just because they weren’t comfortable with the process. And that’s something we haven’t covered is when we’re off of damages, we’re doing a lot of role play and we’re going to be arming them with tools to understand what’s happening in the deposition or the cross-examination.

Darl: So big cases, if you have a difficult witness, one could be trauma two, right? I mean, it could be the nicest person in the world, but they’ve had some sort of trauma in their life from the event itself. I think that’s something…

Andrew: Best example of that. If you’ve got a traumatic brain injury and you’re not a very seasoned attorney who has other seasoned attorneys around them to help give them perspective, people try to fix traumatic brain injury cases. I do most of our traumatic brain.

Here’s the thing, if you get your traumatic brain injury witness trained to do everything and follow the questions and nail it, guess what? They’ve just eliminated all of their damages. They look fine. If you train them to beat the game, then you’ve trained them to look like they’re fine and you’ve killed the case. So what I’m doing with a traumatic brain injury is I’m trying to make sure that they’re honest, that when they’re completely lost, they just say, I’m completely lost. Instead of trying to get through the question and get it right. If they have no idea what’s going on, they’ve just got to say, I have no idea what’s going wrong.

That’s when I’m working with you as the lawyer to help identify where they’re confused, empower them to say that they’re confused, and then you and I are going to work together on the rest of the case to build a strategy around the fact that they can’t nail it in depo. Another example would be a sex assault case. I do not think anyone should take a sex assault case to deposition or trial without someone like us in the picture because those, especially childhood sex assault traumas, I don’t care if you’ve got a $500,000 or $200,000 policy limit, you do not want what we call the phone call. And the phone call is from a loved one of that person saying this is now a wrongful death case. That is so common in childhood sex assault traumas, especially with religious organizations or civic organizations. So there are certain of cases where unless you’re really seasoned, you probably want to bring us in just to help you figure out what’s the plan here? Because the witness’s mental and emotional state is not reliable is a good way of putting it.

Darl: When we’re talking about lawyers preparing witnesses. You mentioned some books. You mentioned one Katherine James has written, what was the title of that?

Andrew: It’s called Harvesting Witnesses’ Stories: How to Get Your Client The Second Best Life in The World. 

Darl: Got it. 

Andrew: And that comes from a case that she did when a witness gave that to her. Actually, she said before this happened, I had the best life. I had the best life in the world. Now with this lawsuit, no amount of money is going to give me the best life, but I want to try and use the money to get, I want the second-best life in the world. And that’s really at its core, I think what we’re doing. So we’re trying to get them as close to the life they had before as money can buy and it’s very damages heavy, but there’s also a whole, it’s a very weirdly written book because it’s stories and then when she talks about in a case where she unlocks something, she’ll go there, go to the back and here’s how you can use the technique that I used in this case.

Darl: Besides attorneys reading books themselves, do y’all do any workshops or trainings with either lawyers individually or entire law firms and come in and teach them techniques they can use?

Andrew: So individual work workshops, we’ve tried to schedule those. Our problem is we’re so busy on casework right now that we haven’t gotten the chance. We did one in Nashville last year. I’m hoping to do one next year. Those are a little harder to come by. You can catch us if you go to our website, we’re traveling, we’re always doing an hour and a half. We are hour and a half at Cleveland trial lawyers like I’m going to Washington Employment Lawyers Association in October. Good places to catch us if assuming they keep inviting us back the a j Advanced Deposition College. Great resource. By the way, advanced Depo. Also the a ultimate advocacy course, which you have to have a certain number of trials under your belt to go to that one. That’s a great place to get exposed to our stuff. So we do teach a lot of workshops, but we come in-house with firms, plaintiff’s firms.

We do, we’re a little bit more affordable and we do have material that we hold back if we’re teaching someone that’s not plaintiff’s side. Now for casework, we are, I wouldn’t say plaintiff only. We have what we call the David and Goliath rule, which is if it’s David versus Goliath, we’re always with David. If it’s Goliath versus Goliath, whoever shows up first with a check wins. So if Bank of America is suing Wells Fargo, I don’t care. But if some lady got ripped off on her mortgage, we’re not going to work with a bank on a case like that.

So we usually are a little more affordable for plaintiff’s firms and they’re fun. I mean, it’s theater games, it’s learning how to use your voice, learning how to use your body. Alexandra Wright, who she’s on our team, you should absolutely have her on the podcast. She is a professor of voice and movement at UCLA. She has a theater degree from Harvard, and all of the people on my team are incredibly smart and accomplished except for me.

Darl: That’s why you’re in charge.

Andrew: Exactly. I am now that boss that I hated. I’m now that boss that I was smarter than my whole life. But no, we’re doing things with voice and movement and we’re just playing.

Darl: And this is advice to lawyers on. So that gets me to one other question I had. Aside from witness prep, what other services do y’all provide to plaintiff’s attorneys?

Andrew: So it’s interesting because things have changed so much. Our witness prep work, and I’m trying to find the nice way to say this without sounding arrogant, we’ve been very lucky to have some very positive outcomes on a large scale for our witness work. And it’s made the witness work sort of become the thing that eats up our most, our time and that we’re most known for at our core. We started out in case narrative development case, narrative strategy.

Katherine was when the tobacco case cases first got busted open. I used to say Katherine was like the cigarette smoking man in the XFiles or Forrest Gump, but brilliant, whenever some massive historical thing happened, she’s there in the back. And if you ask the people who won the day, they’d be like, it was the lady in the back that was really, and so we started out figuring out how do we unlock these cases.

What’s happened is I think that knowledge has become disseminated through things like what you’re doing right now in a way that there are other people who do what we do. And so we’ve been very heavy in the witness prep side, but the witness prep at its core should be integrated with case narrative strategy. And this takes us full circle back to where we started, which is we are doing the witness prep and then we’re going, okay, what does the opening for this look like? What does the closing look like for this? What is our sequencing of witnesses?

The idea that when we’re telling a story, we can’t have all three kids talk about Christmas and we sure as heck can’t have all three kids talk about Christmas and all three kids talk about Easter. It’s like, well, this kid gets Christmas, this kid gets Easter, and which kid goes first? Where are we putting the plaintiff? Where are we putting this doc? That’s macro case strategy and it’s all tied into what’s the story of the case. So we’re extracting the story, we’re modifying the story to fit our pattern elements that we have from David and Friedman and Malone and all those brilliant ones, and which I would point out, Katherine was one of the pioneers there.

And so case strategy is a big part of what we do. So workshops, case strategy, and then if you’re particularly successful and you can afford to have junior associates work with this, you’ve got somebody who you want to break through and be proper. You want to take this smart, talented young person, get ’em into the second chair, start letting them do solos, let them do solos on some of the MBAs while you’re doing the big complex cases, we can do those people.

Darl: You mentioned the part about telling the story, and this is something that I just wanted to comment on. I’ve seen this sometimes be a mistake that other lawyers make is they’re finding out the story in their client’s deposition. I’m sure you’ve seen that, right?

Andrew: I get though. Remember earlier when I was like, the depositions were like, I’m called in for trial and we have to undo the deposition. Yeah, yeah.

Darl: I mean, on the defense side, I’ve actually had a defense attorney tell me one time of a deposition of one of her employees that, wow, I’m learning a lot of these things for the first time, just like you. It’s like that shouldn’t be what’s happening. You shouldn’t be learning the story in the deposition. So it’s important to find that story out. I always tell my lawyers when you’re actually answering discovery, because the story will certainly come into focus the closer you get to trial, but you need to know how you’re going to try and paint that picture.

And so one of the ways you’re going to do it is with pictures, demonstratives. It might be medical devices that you want to bring to court. I see some people, especially when they come over from the defense side, their reflexive response to discovery is to not produce anything or say anything. It’s nothing exists. We’re not producing anything, not identifying any damages, witnesses. It’s like, wait a second, we’ve got to actually be the ones prosecuting this case. You have to have that information.

Andrew: So one of the things that we’re thinking about is what’s our goal in this deposition? If we know we’re going to trial, this is a $3 million case, bare minimum, they offered $60,000 because they think our client’s a liar and we got the meds to prove it, we’re probably not going to go crazy on the damages. We’re going to make sure that when they ask about damages, we itemize things so that they can’t say, is that all? And then we bring them up at trial and they say, you never mentioned this before in your deposition.

So we’re going to cover categories in the depo because we know that the more we hit them with the emotional punch, the more they’re going to have strategies to start counteracting that emotional punch. If however, there’s a shot that this is mediated, it’s settled, or we don’t know it’s up in the air, then I want to unload those damages because the advantage from possibly settling this without the risk for something close to what we would get at trial versus the risk that how do you react to, I can’t pick up and hold my child.

What’s the defense comeback for that? Right? So if we throw that out on the table in a very compelling way at the deposition and we put them on notice, it’s not like, oh, well, now that we know that we’ve got our solution for making people care about children, people are always going to care about holding children.

We’re going to make a strategic move to try and load those damages into the depot. And this is an honest and authentic thing to do. I do not think this is shady at all. It’s looking at the defense and saying, Hey, I’m going to bring my person in and you’re going to see what this case really is so that we can have a good faith negotiation. If however, they’re not having a good faith negotiation anyway, it’s like, okay, well I’ll answer your questions. I’ll follow the rules. But the heartstrings you get to see for the first time in front of the jury, and this is how you’re going to learn that when Darl says, Hey, this is a thing, you’re going to trust me next time.

Darl: Yeah. I’ve had that dilemma before in a case where I was like, is the defense going to undervalue this case? It was clear liability, clear causation, clear damages, but I thought they would undervalue the pain and suffering. And I had that debate with the client. I’m like, well, they’re not really asking the right questions. The written discovery doesn’t really get at it. I don’t think they get it. Should we volunteer it?

If you volunteer it, it’ll help with their case evaluation. But if you don’t feel confident that their case evaluation is going to get there and you’re trying it strategically, you’d rather have it disclosed at trial. So I’ve had that debate. I can tell you in that particular case, I was pleasantly surprised and the case settled at mediation for a very healthy amount of money. And so I think generally speaking for stuff like that where I don’t feel like there’s going to be a harm to disclosing it, I just let ’em throw it out there.

Andrew: And that’s where I think one of the things that makes us different from other people that, well, that’s not true for me. There’s two kinds of consultants. They’re the consultants that we love to work with. I was talking to you before the podcast about Mitchell and Katie Riggs, I think Artemis, who works with David Ball. I love her, Amy and Eric Oliver.

There are these handful of consultants that we love the work. Then there’s another category of consultants that are sort of flashing the name and the verdict and all of that kind of stuff. And I think I’ve, what I love about where we’re at in life right now, and a lot of this is to Katherine, is that most of the people I’m working with are people like you who I’m sitting down and we’re having a humble, good hearted, we’re on a team, we’re working as equals.

Well, what do you think? I mean, do we think should, okay, if we’re going to lay this out in Depo, then if they ask these kinds of questions, you need to be ready to make sure you can unload in this way. And I’m prepping the witness and then I’m going, all right, darl, if they don’t, you get to back clean up. We need to trigger it. We need to go this, this, and this. Because based on my conversation with you, darl, we’ve together kind of made this educated decision. We need to put this on the line. We need to lay this thing out in depo as opposed to, I think the other category of consultants, which is, hi, I’m the wizard of, I just came off of my $70 million verdict and I’m telling you right now that you need to keep your powder dry.

At the end of the day, your client, your venue, this is a dialogue where we’re trying to make that call. And what’s great is having attorneys with sort of the humility and the work ethic to go, okay, I don’t know what I’m doing. The smartest and best people are the ones who are humble before the task who are going, alright, I’ve got a large bank of knowledge, but I’m approaching this case.

I have to make the smart choice and I need to double-check myself three times. That’s where we love, we love to work in that situation is do we put it on, oh, and technique-wise, one of my favorite defense or least favorite defense questions, but the ones I’m most prepared for. From the tip of your head to the tip of your toes, please walk me through every injury you claim you sustained as a result of this crash. Which part of your body is the emotional injury? So if we’re going tip of the head to tip of the toe, identity, memory, joy lives here. Depression. When you get to your chest, I feel a lot of anxiety a lot. Now when I have these panic attacks, I get depressed. I feel it in my shoulders like they’re slumping. We have to start integrating these things so that if we’re wanting to put it on the line, we need to know how. And not letting the tip of your head to the tip of your toes question is strategically designed to get those non economics to get those human damages off the table.

Darl: Before we go, I want to just give you the opportunity to give us three tips, top three that you would give to trial attorneys. And this could be just based off stuff that you see the three most common mistakes. So that hey, here’s an easy fix or things that you think are the most impactful for people to know when they’re doing witness prep of their own client.

Andrew: Alright.

Darl: And if you need more than three, you can.

Andrew: So I’ll group two together in one because I belong together. When I first started teaching this work before Alan and Katherine, I had 10 commandments when I was training lawyers, not doing the witness work, I was training lawyers. I had 10 commandments and doing a bad impersonation of Jesus. I scrapped eight of ’em because I really realized there’s two commandments that if you could follow those two, the rest of ’em are going to sort it out and they are number one, Sanford Meisner had a phrase, really talk and really listen and I flipped it on its head, really listen and really talk. That means when you’re delivering to a jury, you’re not talking at them, you’re really talking, okay? And you’re really listening. Their faces, their bodies are going to give you so much. You’re in a dialogue with the jury. Open up your listen with more than your ears.

Okay, great. Acting is reacting, great. Acting is listening. So really listen and really talk. I would add to that, that I’m at a point in my life and career now where I’ve got people I worked with 10 years or more ago, coming back to me and after I gave them my two commandments 10 years ago, they’re coming. You know what I’ve really learned? What have you learned? The better I’ve gotten at this, I’ve learned it’s really all about listening, and I’m just going, ironically, you weren’t listening to me 12 years ago when I told you it was all about listening. So really listening, really talk Meisner’s number one and the companion commandment is it’s not about you. It’s not about you. If you keep those two ideas central to your delivery as well as your witness prep, those are going to be your guiding North star for witness prep.

My number two, the thing that I find myself saying the most, aside from things like what questions or concerns do you have and things that we do in every prep, the most common thing I see is slow down. Take your time. If you as the lawyer, don’t slow down, your witness isn’t going to slow down. The hilarious thing I’ll see when lawyers who haven’t worked with us before and want to be really involved and they want to lead their own witness prep and we’re just kind of advising is, they’ll go, alright, here’s what I need you to do. I need you to slow down. Okay, can you slow down for me? And I’m like, I don’t feel like I’m not in a slow down environment here. So slowing down is number two. And then number three, gosh, there’s so much to choose from Dr. Martin Peterson’s four forms would be a good candidate. We could talk about the four buckets. That’s another thing we cover a lot. God, for a third, well, let me flip it around. What’s your biggest problem in witness prep? What is your biggest problem that you encounter with witnesses?

Darl: Great question. Obviously it depends on the kind of case. So is it a wrongful death or a serious injury case? I think the biggest thing that’s always a challenge is getting them to feel comfortable talking about their damages. For a lot of people, it’s embarrassing their limitations and the things that they’ve been through.

And so one easy solution to that is have the before and after witnesses talk about a lot of that stuff. But for me, it’s always that balance between having the plaintiff talk about their damages, the human damages, without making it appear like they’re whining. So for lawyers, how to prep the client so that they don’t tread into whining territory or exaggeration territory, but they’re telling it like it is and they’re getting the full story out.

Andrew: Okay, so this is a, it’s different at trial than at Depo. So rather than thinking about this as a tactical, do this in the depo, do this trial, I’ll say generally you’re getting back into some historical stuff. This whole idea of the old Mo Levine. Then there was the guy who wrote, who will speak for the victim. This goes back to that idea of I don’t believe that the client is the hero in this story. There are those who believe that philosophy, but I am not one who subscribes to that. But the client has to be someone that you want to rally to. The old example that I use is I go, Hey, I’m going to go hang out with, I’m going to go hang out with my friend who has cancer. You’re like, oh man, that’s not the Saturday that I want to have.

I would go, Hey, I got a friend who’s fighting cancer and they’re going to do something today. You want to come? It’s like, hell yeah. Who doesn’t want to be on the fight cancer team? So you have to look for the joy that was lost and for the efforts and the desire to reclaim that joy, not just the injury and the loss that falls in between those two moments. We have to get, I use the mountain climber analogy and the mountain climber analogy is this, we need you to be climbing the mountain, trying to win the day, trying to get over this. If we’re climbing the mountain too much, then we don’t see any damages with the bloody feet and the frost bite and all of that kind of stuff.

Darl: It’s the TBI witness trying to be too perfect.

Andrew: Exactly. But then the flip side is nobody, you’re going to die and freeze to death on the side of the mountain if you’re just this sad sack crying about how cold you are. So the answer is describe, don’t judge. So it feels like this, not, I hate my life. I’m so sad all the time. I’m constantly fighting this sadness and hoping that I’ll have a day like that one day three weeks ago when I, good example from something that we found on one of our old tobacco cases. How are you doing today? Today’s a good day. Tell me about a good day. Well, first of all, before I came in today, I was able to sit on the porch for half an hour and watch the birds, and that was one of my favorite things to do before things got so bad, and I’m grateful anytime I get a chance to watch the birds.

I always loved, I used to be a bird watcher, so we put feeders out and I got 30 minutes with the birds today, and then also today I had all these people supporting me and getting me in. So I get to be around people, and I know this is a courtroom, but I get to be around people and that makes me feel good. It’s not something I get very often, that gratitude and that positivity make us want to be on that person’s team. But what’s the reality of that? That person just described a life where the best day they have is 30 minutes of birdwatching and seeing other faces in a situation like a trial. So we have to find ways to tell that story that threads the needle. Right. The Scylla and Charybdis are, you’re fine, or you’re a sad sack.

Darl: I have no idea what you just said.

Andrew: Scylla and Charybdis. So this is means theater nerds. When Odysseus was going on his great journey, he had to pass through these straits and on one side was Scylla and the other side was Charybdis. And both of them would sink the ship and he had to navigate through.

Darl: I read it in high school.

Andrew: The frying pan and the fire. This is where theater nerdery just…

Darl: The only thing that I got out of high school was how to type to keyboarding. That’s it. I don’t remember anything else.

Andrew: I am glad Katherine is because Katherine will throw stuff out when she does all the time. She’s like, and then you’re Oedipus on the road to Thebes. And I’m like, what? Hold on. I remember the But how is that? Oh, okay. So you’re trying to avoid fate and running, but that applies to this case. But Katherine, it’s just like no big. Yeah, so you’re like Oedipus on the road to Thebes, and I’m like, I really have to go back to my high school literature.

Darl: Well, thank you for joining us, Andrew. This has been a very insightful conversation for me. I learned a lot from these podcasts. That’s one of the benefits of doing them. I hope that our listeners did as well. For anybody listening, how can they find you and reach out to you,

Andrew: Andrew@actofcommunication.com. If you go to our website anytime in the next couple of months, I’ll warn you, it was a cutting edge website in 1997, and we’ve been so busy with cases, but no, Andrew@actofcommunication.com is the way to go,

Darl: And we’ll put that in the comments.

Andrew: I would also add that the joke I made earlier about my team all being smarter than me, there are certain kinds of cases that I don’t even handle anymore because the rest of the team do them better. So any opportunity you get to see anybody that works with us, please do. And then also I’ll do a shout out. I didn’t realize until I was getting ready for this podcast. How many friends and colleagues you have. Looking back, if people haven’t watched some of the others, we have a lot of friends. I was like, oh, they did the podcast. They did the podcast. So it’s a great roster. Check out the other ones if you haven’t already.

Darl: Well, thank you. 

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