Transcript:
Adam Bloomberg:
Hi, everyone. I’m Adam Bloomberg, Senior Client Success Advisor here at IMS Legal Strategies. Today we’re talking about preparing CEOs and other senior executives for testimony. Executives may be exceptional communicators in the boardroom, but something changes in the courtroom.
Joining me are Alexa Hiley, Jury Consultant, and Chris Dominic, Senior Director of Jury Consulting, whose work on executive communication was recently featured in the Wall Street Journal. If you enjoy this content, please like and follow us here on LinkedIn or over on our YouTube channel.
Alexa, I’m going to start with you. What changes in the courtroom?
Alexa Hiley:
I think it’ll probably come as a surprise to very few people when I say that generally, first impressions are formed very quickly. But that is doubly, even triply, true in a courtroom, when people are consciously trying to make rapid impressions. It’s not just happening at the unconscious level. People are actively attempting to make conscious evaluations of the people they’re listening to in a courtroom context. That means a juror is essentially assessing the credibility of a witness, often before the witness even realizes it. From the moment your name is called and you’re up to testify, it’s showtime, and jurors are judging you before you even get on the stand.
Competence isn’t the only dimension jurors are evaluating. When they’re looking at credibility, they’re also looking at perceived warmth and intent. Is your intent to deliver information in a transparent, straightforward way, just to get up there and tell a story? Or is your intent to provide spin for your side and sell them a narrative? Jurors are really keyed in to any subtle signals that point either way.
Often, specifically with someone at the executive level, they’re generally highly accomplished, and there’s an assumption that expertise and accomplishment will create a sense of trust: “I’m an expert, I know what I’m talking about, therefore you should trust me as a messenger of information.” But that’s not actually always how it works from a juror’s perspective. Jurors are evaluating relatability, warmth, and likeability, along with knowledge, competence, and expertise.
Adam Bloomberg:
Now, Chris, you were recently featured in the Wall Street Journal, in your article “When the CEO Takes the Stand.” In that article, you talk about the “neighbor tone.” What do you mean by that?
Chris Dominic:
Neighbor tone is basically a way to explain something to somebody that they don’t know about, in a way that shows you respect them, because you know that they know things that you don’t know too. It’s a way to develop a tone that’s respectful and recognizes: I’m smart, I’m helping them understand something I know that they don’t, but it could just as easily be that they help me understand something they know that I don’t. It’s a way to particularly protect against accidentally sounding like you’re talking down to somebody.
Alexa Hiley:
That’s really important, because jurors do tend to be very sensitive, I’d even say hypersensitive, to perceived status dynamics. They notice even very subtle cues that hint at any sort of hierarchy or power dynamics. If they get even a whiff of an idea that whoever is testifying thinks they’re somehow above them, better than them, smarter than them, that reads as a red flag.
Adam Bloomberg:
So it sounds like over-preparing can actually become a problem.
Chris Dominic:
Oh, yeah, absolutely. It’s not unusual that the most credible version of the witness we experience is the one we were hanging out talking with over the break. The challenge is that testimony is unnerving. It’s hard. So executives often become so worried about saying the wrong thing that they stop sounding like a human being. They go into a corporate version of themselves, and that’s not going to help.
The moment someone takes the stand, jurors level them with a heightened degree of scrutiny. One of the things they’re very attuned to is signs of what we call cognitive strain, or cognitive load. If jurors expect that someone telling the truth in a straightforward way, intended to inform rather than deceive or manipulate, it should be easy. We have this expectation that telling the truth is very easy and straightforward; you’re not making anything up, so it shouldn’t place much demand on your cognitive resources.
Conversely, if jurors sense cognitive strain, they tend to assume it comes from an attempt to pick your words carefully to avoid giving away information, that you’re trying to talk around something or maintain a deception. That can create a sense of distrust. Oftentimes, though, signs of cognitive difficulty or concentration aren’t coming from an attempt to deceive. They’re coming from an attempt to pick words carefully, to speak precisely, and make sure you’re communicating the points you’ve prepared for.
Alexa Hiley:
And that’s where over-preparing can trip you up, because you end up spending so many cognitive resources trying to remember, even word for word, your prepared themes and points, that you can inadvertently create the appearance of being evasive or deceptive.
Adam Bloomberg:
So what are some ways executives unintentionally create distance between themselves and jurors? Chris, I’ll give you this one.
Chris Dominic:
Sure. Jargon, over-explaining, sounding defensive, accidentally signaling superiority. I think the key here goes back to the neighbor idea: how would you talk to a neighbor at a block party? You’re not going to tap them on the head; you’re going to have a dialogue with them. That’s what’s weird in court, because it’s question and answer, but you can still turn to the jury and show them you’re trying to connect with them. Jurors want respect, clarity, and accessibility. The fastest way to lose connection is to talk down, or to sound like you’re obscuring what you’re doing with jargon most people can’t understand.
Adam Bloomberg:
Why is deposition preparation often more important than executives realize?
Chris Dominic:
A lot of people don’t realize that a deposition is trial testimony. You’re sworn in, so what you testify to in your deposition, you’re locked into at trial. The problem is a lot of executives are busy and think they can just coast through it, so they don’t want to give a lot of time to preparation. They end up not knowing things they probably should be prepared to testify to.
The trouble is, when you get to trial and suddenly have a very clear answer about something, opposing counsel will ask, “How come you didn’t know anything about this during your deposition?” Jurors tend to defer to the deposition on this, because it sounds like, now that trial is closer, you decided to spend more time on the issue and came up with a better answer. That ends up hurting you, because it shows you didn’t spend enough time in the deposition to really have something helpful.
But I’ll tell you, jury consultants here particularly like it when you have a good deposition, because when you call us for a mock trial, we can actually play snippets of your video where you’re at your best, as opposed to what we sometimes get: people who were lightly prepared and didn’t really know what they were doing. Then we get very different responses, and we’re locked into a lot of that testimony without being able to do much about it.
Alexa Hiley:
It’s really interesting, because I think we all recognize, jurors included, that nobody’s memory is perfect, and that the way you talk about or recall something is naturally going to shift a little over time. But in any deposition or courtroom context, there’s suddenly this real expectation that your memory is going to be 100% locked in and perfect. The way they gauge that is through an expectation of consistency: did you remain consistent between when you first went on the record and when you’re on the stand in front of them?
As Chris already alluded to, what might actually be very natural changes in your recollection over time is very likely to be read as deliberate revision, an attempt to cover up something you didn’t like about your previous version of the story. What’s important to keep in mind is that attorneys know this, and a skilled opposing counsel will be able to highlight any inconsistencies and really draw attention to them, which only amplifies that effect.
Adam Bloomberg:
All right, one last question. What separates a credible executive witness from one jurors struggle to trust?
Alexa Hiley:
I’ll build off what I just said: consistency. And it’s not just consistency between deposition and trial; it’s consistency between your words, your tone, and your behavior. If your words are telling a different story than your tone, and your body language and facial expression are telling a third story entirely, that level of inconsistency is going to be flagged for jurors as something that isn’t as credible as it could be.
You’re also looking for clarity without defensiveness. One important thing there is preparing the hardest answers. It’s not fun to practice the answers to the toughest questions you know are coming, but it’s absolutely critical to give a clear, concise, and non-defensive answer to the most difficult questions.
Similarly, confidence without arrogance. You want to project expertise, knowledge, and confidence in your own expertise, without projecting “I know everything, I’m better than you, I’m better than the attorney talking to me.” Making sure you have a very clear understanding of where that line falls matters.
Overall, jurors are looking for coherence more than perfection. They don’t expect you to be perfect; they just expect you to be coherent and as consistent as possible across time and across different modes of communication. So consistency and coherence are absolutely key.
Chris Dominic:
I said to somebody just last week, and they were really surprised to hear this, that we often see credibility go down when we’re testing witnesses in focus groups and mock trials, when we see a witness trying too hard, basically advocating for their own side. Jurors expect the attorneys to be the advocates and the witnesses to be witnesses. Witnesses are there to answer questions truthfully. So when it looks like you’re piling on or trying too hard, the credibility meter starts to go down.
Credibility is usually less about sounding impressive and a lot more about sounding real. The best executive witnesses stay human under pressure. They’re prepared, but conversational. They’re knowledgeable and approachable, confident without sounding guarded. Those things are all much easier said than done, particularly under pressure, particularly when you have a loaded question thrown at you. That’s why it’s so important to go through enough preparation that something very unnatural starts to become natural for you.
Adam Bloomberg:
Well, Chris, Alexa, thank you for taking the time with me today. I really appreciate it.
And if you’re still here, you’ve made it. Thanks for sticking around to the end. Again, if you enjoy this content, please like and follow us here on LinkedIn or over on our YouTube channel. Until next time, thank you to our guests for speaking with us today.
To discover how the IMS team can help give your case an edge, check out imslegal.com, or shoot us an email at contactus@imslegal.com. IMS has served trusted law firms and corporations worldwide for more than 30 years in over 70,000 cases. Our integrated consulting and expert witness solutions span the full litigation life cycle, helping clients solve complex challenges, develop informed strategies, and position disputes for the best possible outcome. Together, we win.
