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Commentary: Listen for the song in your witness’ head

You walk into the conference room to start preparing your witness and wonder: What is he or she thinking? What are the expectations and misconceptions?

Put another way, what is the song playing in the witness’s head, and what are the chances it’s the same one playing in yours?

One of the first, and most often ignored, challenges for effective witness preparation comes in three steps: understand your own assumptions; learn those of your witness; and try to pull them close together.

In an earlier column, I talked about the gap between lawyer and witness perceptions. Renowned Los Angeles trial lawyer Sydney Kanazawa has a different take. At a recent seminar put on by the Litigation Counsel of America, he talked about listening to the “song” in each other’s 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; that is, trying to get it to view a case with the same perspective, the same song, as we do. But the lessons are equally appropriate for witness preparation.

Lawyer and witness walk into the preparation room with dramatically different perspectives. How could it be otherwise? The witness’s ideas about lawyers and what they want don’t come from following you around; they come from TV, movies, the Internet, friends, etc. — all tilted toward the dramatic and scandalous.

Your ideas of the witness also come from often inaccurate sources: bosses, documents, other lawyers, etc. — tilted in ways about which you often have no clue, at least at the outset.

You’re both trying to understand what the other is saying without knowing at all what the other is thinking. It’s a tough challenge.

As a small demonstration, Kanazawa used an experiment from a 1990 Stanford University psychology thesis by Elizabeth Newton. I’ve used it with several lawyer groups I talk to about witness preparation.

It’s a surprisingly simple exercise, but a revelation. We divide people into pairs. The Clappers are asked to think up a popular song that everyone knows. Newton gave out lists of 25 songs (the 1990 list included “Rock Around the Clock,” “This Land is Your Land” and the theme to “Gilligan’s Island”).

By whatever means, the Clappers come up with their song, then — without saying or singing anything — clap out the rhythm for the second group, the Listeners. After 30 seconds or so, the Clappers are told to stop and the Listeners are asked to guess the song. In a seminar room full of lawyers, it’s quite a sight.

Here’s the point: The Clappers have the song in their heads and they hear it while they clap, assuming the Listeners hear it too. In the Stanford study, more than 50 percent of the Clappers believed that the Listeners would easily guess their song, but only about 2 percent did.

Therein lies the problem: It’s the Clappers’ song, in their heads. The Listeners may know the rhythm, but can recognize it only if the tune is already playing in their heads. Otherwise, all they hear is a Morse code of clapping, with no context, no music, no guidance. They have no idea what the song is.

Think about that. You walk into that preparation room with a song playing in your head. Maybe it’s, “I just want you to tell the truth” or “The problem with this case is …” And on and on.

Those are not the songs playing in witnesses’ heads. Maybe their songs are, “All lawyers want is to win” or “I can’t tell this guy everything, because …”

The only certainty is that each of you will have different songs and different perspectives. Whatever you say will sound only like random clapping, unless and until you take the time and effort to understand the witness perspective.

There’s never enough time in our busy lives to linger on something as amorphous as perspective. So we jump right in with what needs to be done, what needs to be said. A lawyer knows what he wants from a witness. But that knowledge can be both a blessing and a curse, because it’s too easy to assume that the witness shares the same take.

The only way to effectively prepare is to take the time to find out the perspective of witnesses and understand it. What’s clear to you might be merely the sound of random clapping to them. Listen for the song in their heads.

Daniel I. Small is a former federal prosecutor and author of the American Bar Association’s “Preparing Witnesses.” A partner in the Boston and Miami offices of Holland & Knight, he can be contacted at dan.small@hklaw.com. A version of this column originally appeared in Massachusetts Lawyers Weekly, sister publication to The Daily Record.