July 16, 2025 • 36 mins
Episode 26: Mastering the Art of Direct Examination
What separates a good trial lawyer from a great one? Karen Koehler and Mo Hamoudi unpack what makes a direct examination persuasive, from reading the jury’s body language to deciding when to provoke or disarm a hostile witness. They share real trial stories, including moments where everything went off-script and the only way to save the case was by adapting on the fly.
Forget rigid outlines and rehearsed testimony. Karen explains why she now preps plaintiffs like an Oprah interview instead of a legal exam, and why keeping their testimony short often works better. Mo brings in his acting background to show how body language and proximity can build trust. They also dive into the gender dynamics of trial, and why female attorneys face a different standard when navigating authority and emotion in the courtroom.
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Hosted by Karen Koehler and Mo Hamoudi, trial lawyers at Stritmatter Law, a nationally recognized plaintiff personal injury and civil rights law firm based in Washington State.
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Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Mo Hamoudi (00:00):
Well, you know, I think we need to do more
episodes that teach lawyers orhelp lawyers.
Young lawyers learn how to dodirect examinations, and I
thought that would be a goodtopic for us to discuss.
Karen Koehler (00:15):
I thought it would be a good topic to discuss
.
You just co-opted my topic andtook credit for it.
I'm just going to call it likeI see it.
Go ahead.
Mike Todd (00:26):
You guys are still spicy.
I can't.
Mo Hamoudi (00:30):
I'll never win with you.
There is never, never, a winwith you.
It's true.
Never a win.
Karen Koehler (00:36):
True, all right.
So I'll tell you a story.
So direct examination is whatwe're going to focus on, of the
plaintiff or of lay witnesses.
We won't do experts and wewon't do cross in general, but
we'll do direct of lay andplaintiff witnesses.
Okay, okay so, and in criminaltrials, of course, the accused
(00:58):
almost never testifies, so youprobably haven't had as much
practice with your clienttestifying as I have.
But I'll tell you this onestory.
I always, kind of I always canremember it and I'm going to
take you on my journey ofunderpreparing, overpreparing
and then how I prepare.
Now, I used to overprepare allmy witnesses because I was
(01:18):
trained as a defense lawyer andwe were trained to overprepare
on everything.
So that was the rigor.
I overprepared, we would havelists, we would have practice
sessions, and a lot of peoplestill do that today.
And when I started doing aplaintiff law, I still use that
rigor.
And what happens when you dothat?
(01:39):
In my experience as a lawyer,that's like me, which I am more
real, like I don't.
I hate scripted.
It sounded scripted, it was allcorrect.
It caused an enormous amount ofstress on the witness because
they had to memorize all thatand not make any mistakes and
(02:00):
you ended up with very stiltedtestimony that was correct but
not persuasive and, as we allknow from Paula Vera, trial is a
matter of impression, primarilyso.
I did that for years becausethat's what I was trained to do
and had to do as a defenselawyer and went on to a certain
extent and then I kind of didthe opposite, which is I did
(02:23):
nothing, very little.
I just assumed they alreadyknow what they're testifying to,
they're supposed to speak thetruth and they should just do it
.
Well, that had some interestingconsequences.
And now I have a differentapproach which I'll get to.
But I'll tell you this one storyof this one client.
She was one that I'd actuallyprepared.
(02:43):
She had prepared.
It was just a car accident, onethat I'd actually prepared.
Um, she had, she had prepared.
It was just a car accident caseand she was prepared, she knew
it wasn't complicated, she knewher stuff.
I put her on as a witness.
She had gone through hertestimony.
It wasn't flashy, it was fine,she did just totally fine.
The defense lawyer got up andstarted cross-examining her and
(03:04):
before I knew it, my client wasstanding up like this, yelling
at the defense attorney, thejury.
I just watched the juryinstantly hate my client oh boy.
Like you cannot have your clientyelling at the defense attorney
(03:27):
.
They're not supposed to be ableto do that, and I'm sure that I
had already told her.
You know those are one of therules, like, don't lose your
temper, oh boy.
And so the one thing that I wasalways good at was reading a
room and acting quickly.
So as soon as that happened, Ihad well, it was happening and I
(03:49):
was thinking this is terrible,what am I going to do?
So that's lesson number one isyou have to be in the moment.
You can't be thinking aboutanything else.
You got to be in the moment,and when you're in the moment in
direct exam, you are in themoment with your client, but you
also have to be sensing what'sgoing on with the jury all at
(04:10):
the same time, which can bedifficult if they're to your
side.
I also don't believe in infederal court.
You're handicapped because youhave to stand behind the stupid
podium, which I hate, um, and Iwish that they would grow up and
get rid of the stupid podium.
I hate the podium.
It's a barrier, it's us versusthem and it is an artifice that
(04:31):
I think is gross.
That said what you were trainedto do when you went to trial
class, or by my senior partnerswhen I was a defense lawyer, was
to always stand at the far endof the bar of the jury.
So the jury's lined up likehere and you're supposed to
stand at the far end of the barof the jury.
So the jury's lined up likehere and you're supposed to
stand at the far end and thenthe witness is way at the other
end and that way the jury willjust only look at the witness
(04:53):
and they will project and theywon't be going like this, but in
fact they will.
They'll be going like this andit's too far away.
It's like you're yelling atthem and then they're yelling
their answers back at you.
I don't ever do that.
Now I don't go stand right nextto them because then they'll
only look at me and I couldblock the jury.
But I will stand relativelyclose.
I'm very conscious of, and allcourtrooms are different.
(05:16):
So I want to figure out, likewhere am I going to be standing?
So I get back up there to dothe redirect and I've been
watching the jury.
I'm like what am I going to do?
It wasn't a long cross.
I'm getting up there to doredirect and I lit into her.
Yeah, I said, why are youyelling at the defense?
(05:38):
And I just lit into her and Ibecame angry.
Now I got a good plaintiffverdict and afterwards the jury
said that they were very bad atme and upset that I was so mean
to my client.
They had nothing bad to sayabout my client yelling at the
(06:00):
defense lawyer because they hadforgotten about it because I had
interviewed him.
Mike Todd (06:02):
Because you took it away.
Mo Hamoudi (06:03):
You took it away.
Karen Koehler (06:04):
I took it on.
Mike Todd (06:05):
Yeah.
Karen Koehler (06:07):
And that's what you have to do.
You have to be able to dowhatever you need to do for the
jury.
Mo Hamoudi (06:15):
Yeah.
Karen Koehler (06:15):
That's the difference.
Mo Hamoudi (06:17):
Yeah.
Karen Koehler (06:17):
I will always remember that, because I don't
even remember what I said to her.
I just came out and attackedher and the jury was just
shocked.
Mo Hamoudi (06:28):
That's a very effective technique.
Karen Koehler (06:31):
Well, I wouldn't recommend it to anybody else.
Mo Hamoudi (06:33):
Well, no, but what you did is what Mike just
described is that you took awayyour client, was transitioning
from being a protagonist into anantagonist and you made
yourself the antagonist, whichcaused the jury to want to
protect the client.
Yes, and I think that's aneffective technique in trying to
draw back and shift energy.
Karen Koehler (06:55):
But it wasn't something that you would ever
learn in law school?
Mo Hamoudi (06:58):
No, no.
Karen Koehler (06:58):
It was not appropriate exam.
I mean, everything I said wasfine, but it wasn't a textbook.
A textbook, I wouldn't tell youthat.
There's this thing that youhave to do in trial, that is,
read the room and be present,and most lawyers have a very
(07:19):
hard time doing that.
Oh boy.
That's true there, and when youhear the term multitasking, that
is a hard term.
Most people will say they canmultitask, but most people can't
, and even the people that canmultitask, it's never as good as
just having one thing that youcould focus on.
However, I pretty much canmultitask, and that allowed me
(07:43):
to be able to do that.
Now, maybe I could do it betterif I only had, you know, two
things instead of four things tobe considered, because I had a
whole other list of things thatI could have also talked about,
address things on the meritsmore, or done something else,
but being able to read that room, so it's an emotional thing,
yeah, so I'm going to give youone more example.
So so I it's happened twice tome.
Mo Hamoudi (08:10):
Okay.
Karen Koehler (08:11):
Um, it happened in two different cases where I
had a horrendous eyewitnesshorrendous was going to kill the
case.
Um, the first case theeyewitness was following another
vehicle going the other way.
Um, so my client was comingtowards them and the witness was
behind the vehicle that crossedthe center line, hit him.
(08:33):
This is a fire truck case.
I think I told you the ambulancecase and what I did was in
deposition I had to map it out,but then I had the wrong map.
I didn't mean to really confusethings, but I had things all
kind of mixed up and the witnessgot very upset and angry with
me.
And then I said I find out allthe I don't knows, like what
color was the car, I don't know,what time of day I get all the
(08:56):
I don't knows, but I'msprinkling them all through the
deposition.
I don't ask them all one at atime.
I'm getting all these I don'tknows.
And then I very specific andthen I said well, what happened
after the crash?
You ran out to her aid?
No, I didn't.
Why not?
Well, I'm scared of blood.
Oh, you didn't go becauseyou're scared of blood, but like
you were the first one thatcould have gotten there, what
(09:18):
did you do instead?
So when we got to trial, Icalled the witness because I
needed to.
He was the most troublingwitness and what do you think I
did?
Mo Hamoudi (09:29):
What did you do?
Mike Todd (09:30):
Well, first of all, All the I don't knows in a row
right away.
Karen Koehler (09:35):
I did all the I don't knows.
But the second thing I did is Iasked him to diagram the
incident and he refused.
Now he refused because the lasttime it happened in the
deposition he got angry at mebecause I was using the wrong
diagram and he had to redo itand he thought I was trying to
confuse him and mislead him.
And I'm like I'm so sorry, I'mjust, you know, sometimes I just
(09:57):
don't get things right, youknow.
But I knew I had triggered him.
So he refused and but the jurydoesn't know anything about the
history.
They're just like this guywon't even draw a simple diagram
.
He refused to do it and then Isaid why didn't you go and check
on her?
And he said, well, no, I didn'tgo check on her, why not?
Well, I was scared of the blood.
(10:18):
I mean, they disbelieved himentirely.
Mo Hamoudi (10:24):
It was a refusal to cooperate and draw a diagram.
Karen Koehler (10:28):
So this next witness, which was the
motorcycle case, who said thatmy client was going 80 or 90
miles per hour before impact,and he was an FAA guy, so he was
a person that's used totracking relative speeds.
Mo Hamoudi (10:45):
Speed to distance, yeah.
Karen Koehler (10:47):
I mean, this is a disaster.
Right Could be, but I'd takenhis deposition and I had pissed
him off.
I can't even remember why, butI knew.
I knew why and I had also askedhim all the I don't knows, all
I don't knows which, there endsup being like 20 of them, and
when you put them all together,they're great.
Mike Todd (11:06):
Yeah, that looks really bad.
It's really bad when you havethem all in a row.
Karen Koehler (11:09):
However, what's even better is my first question
to him.
When he got up on the stand, hegot up on the stand.
He was very angry to be there.
Again, he hated me indeposition.
He was very angry to be thereand actually he wasn't even
there, it was by Zoom.
He refused to come.
Mo Hamoudi (11:32):
And the first question I said what was the
first question?
Karen Koehler (11:39):
Did you tell my staff to F off when they tried
to bring you here to court?
What?
Mo Hamoudi (11:43):
And he went off.
What did he go off?
He didn't.
What did he say?
Karen Koehler (11:49):
I don't need to be here.
How dare you make me come tocourt?
He went crazy and then thewhole thing was a battle and the
jury hated him.
He was disrespectful to me, hewas disrespectful to the judge.
The judge wanted me to end itand I'm like, yeah, I'm not
ending this, I'm keeping going.
It was horrible testimony.
Mike Todd (12:10):
Well what you're talking.
How did the jury react to that?
Karen Koehler (12:12):
Well, I was just as sweet as, and all the time
for each of these.
I'm just as sweet as calm andlike I have no idea what's going
on.
I mean I don't know what'shappening here, what, what I
mean, the softer I get and Ijust let him do it.
The jury hated him, disregardedhim.
Mo Hamoudi (12:34):
You're describing techniques that you're using
with friendly witnesses andadverse witnesses.
This gentleman was both adversewitnesses and the setup for the
examination occurred in thedeposition.
You understood what histemperament was, you understood
what the trigger was, and thenyou went in and used the trigger
to have him diminish hiscredibility in front of the jury
(12:54):
and ultimately discredit himand discredit the defense In a
very sweet way.
In a sweet way, and yet no,that's not taught in law school.
Karen Koehler (13:04):
No, but how do you even do that?
Like your first question isliterally going to be did you
tell my staff to F off?
Well, I mean, when you do thatfirst of all, rory Lee did not
see that coming and didn'tobject to it.
Yeah, but you know it goes tomotivation and why you're there.
It's completely not irrelevant.
Mo Hamoudi (13:24):
No, I think it's totally relevant.
It's relevant.
He's a combative witness.
Karen Koehler (13:29):
I just wanted to get that set that record
straight and I did.
Yeah, so those are someexamples of things that you you
cannot prepare for this likepeople think people over prepare
so much in trial and I thinkthat you should prepare like I.
(13:51):
It's not that I don't prepare,I prepared, but if you don't
give yourself space, you can'tsee the courtroom.
Mo Hamoudi (13:59):
I totally agree.
Karen Koehler (14:01):
People, how?
Tell me, let's talk aboutseeing the courtroom, because
for me, the most important partabout examination is how it
lands.
It's not how the witness iseven doing.
They can be doing technicallyeverything perfectly, it's do.
These people seem to care.
Mike Todd (14:21):
Well, that's the most important thing is what the
jury is thinking.
Karen Koehler (14:23):
But most people can't see the jury or they're
not focusing on the jury.
They're wanting to make surethat answers are correct.
Mike Todd (14:29):
Yeah, they can't do that yeah.
Mo Hamoudi (14:33):
I mean.
For me, it's a couple of things.
One law school didn't teach mehow to move and be in a
courtroom or how to examinewitnesses.
Karen Koehler (14:52):
Let's talk about being and moving in a courtroom
, especially in the context of adirect exam I talked a little
bit about.
My placement is typicallyfairly close to the witness, not
on top of them, but in anintimate setting, like we're
having a conversation.
You know, I'm having aconversation and you have, and
they always say, would youplease speak up?
Or I have to hold a microphoneor something like that, and I
don't, I don't care, I'm happyto do either, but you don't ever
(15:15):
have to be told to speak upbecause, you were very loud.
Mo Hamoudi (15:18):
Yes.
Karen Koehler (15:19):
But talk to us about body voice.
Where do you go in thecourtroom when you're examining
witness?
Mo Hamoudi (15:25):
Well, first, I'm a Meisner-trained actor.
I was in New York, I was anactor.
I was in New York, I was anactor, I was a writer.
Karen Koehler (15:31):
So my Wait a minute, meisner is who.
Mo Hamoudi (15:33):
Sandy Meisner.
He is like Stella Adler, who isa technique of learning how to
act, and Meisner training isShow us.
It's oh, I can show you.
Karen Koehler (15:46):
Okay, wait, who are you going to be?
Mo Hamoudi (15:47):
Who are you going to be?
Karen Koehler (15:49):
I don't know You're leading this.
Mo Hamoudi (15:50):
No, you're leading this.
I am you going to be?
Who are you?
Karen Koehler (15:52):
going to be.
I don't know.
You're leading this.
No, you're leading this.
I am.
Who should I be?
Mo Hamoudi (15:54):
You can be whoever you want.
We're doing Meisner right now.
That's Meisner.
Mike Todd (15:59):
That's what I was going to say.
He's already doing it to you,I'm doing it.
Mo Hamoudi (16:02):
So the Meisner technique.
There's the Adler technique,which is what's called the
method acting, which is you tapinto an experience that you know
well and you call on to thatexperience from a historical
experience could be trauma andyou rely on that to be in
character.
Meisner is about listening,listening to understand, as
(16:26):
opposed to listening to want torespond.
Karen Koehler (16:30):
Wait, repeat that and explain.
Mo Hamoudi (16:32):
Okay, you're listening to the person to
understand where they're at andwhat they're saying, and then,
when you understand, then yourespond.
So in a setting of a courtroomit translates actually really
well.
It's a technique that I used topractice when I bartended, so I
(16:54):
used to work on rolls, and whenI'd go to auditions I would
just use the technique while Iserved people drinks.
So when I do an examination,Like what?
Karen Koehler (17:11):
Can I have a rum and coke?
Mo Hamoudi (17:14):
What's your name?
Karen Koehler (17:16):
Sally.
Mo Hamoudi (17:17):
Sally, where are you from?
Karen Koehler (17:19):
Houston.
Mo Hamoudi (17:20):
Houston, when did you come to New York City?
Karen Koehler (17:23):
When did you come to New York City?
Mo Hamoudi (17:25):
I've been here since 2000.
Karen Koehler (17:28):
Oh well, I was there since 2005.
Mo Hamoudi (17:32):
Do you like New York City?
Karen Koehler (17:33):
Yeah, do you, I love it.
Mo Hamoudi (17:35):
Why do you like New York City?
Karen Koehler (17:37):
Well, because I can meet fun people like you.
Mo Hamoudi (17:39):
So what we're just doing is that we're having an
intimate conversation and we'rebuilding rapport.
What juries want, whataudiences want, is they want to
get inside an intimaterelationship.
They want to get to know peopleand you can use this technique
(18:00):
to get the jury to know you,because ultimately, you're going
to go talk to the jury inclosing and they got to trust
you.
You can talk to them or theycan get to know you through
watching you have conversationwith somebody else, and so my
approach is to have aconversation, an intimate
conversation, with a witness andlet the jury within that
(18:22):
conversation Now sometimes theseare what I'm talking about are
friendly witnesses and, forexample, in the Taylor trial, if
you go back and watch myexamination of Summer's brother,
my entire examination was basedon this technique, was getting
to know him and he getting toknow me and the jury getting
(18:46):
insight into that.
Now, my movements areintentional.
You will see me move in acourtroom between questions I
ask because I'm creatingdistance between myself and the
jury, coming closer to them.
I'm actually trying to createphysical intimacy with the jury
so that the jury trusts me thecloser I get to them and the
(19:08):
witness the same way.
Karen Koehler (19:10):
He's more calculated than I am.
Mo Hamoudi (19:12):
I mean.
Karen Koehler (19:13):
I'm very intuitive.
I'm just I'm feeling it.
I feel it if they like me ordon't like me, if they're
leaning in or not.
I'm something about me.
I can tell the micro movements.
I can feel it really well.
It's always been a pretty goodstrength of mine.
I can tell when they don't likeme and when I'm going to be in
trouble.
Mo Hamoudi (19:30):
You're talking about.
They don't like you.
Who's that?
Karen Koehler (19:32):
The jury.
I'm only talking about the jury.
Okay, but so I don't, I don't,I'm not intentional.
Mo Hamoudi (19:43):
Well, I guess, as you are, well, I wouldn't say
I'm intentional.
You just said you wereintentional.
Karen Koehler (19:45):
I'm saying okay, let me reframe Quote unquote
yeah, every movement I make isintentional.
End of quote.
Mo Hamoudi (19:50):
Okay, fair, but it is.
But I can tell you right nowthat you can't tell that I'm
being intentional.
No one is able to tell what thehell I'm doing.
No one's able to sit back andgo oh, that's dumb.
Karen Koehler (20:00):
Now I know.
Well, now you know he's doingthe walk.
Mo Hamoudi (20:06):
No one's going to be able to go.
Oh, now they all know.
Well, yeah, now they know.
But the second thing is thatyou can get people to like you
through this process.
If they don't like you, you canget them at a minimum to trust
what you're saying.
It is through the intimacy I amtelling you.
(20:29):
It's creating intimate momentsbetween a witness and yourself.
Now, strategy-wise, what I'lldo is, if I interview a witness
before they take the stand andlet's say they are an adverse
witness, I will be veryaggressive with them outside of
the courtroom, Okay, and thenwhen I come into the courtroom,
(20:53):
I flip.
Karen Koehler (20:54):
Same, exact Same .
That's what I just explained,yeah.
Mo Hamoudi (20:57):
Yeah, so that approach it's very effective.
It throws the witness off andthen they start to just give you
things that they would not haveotherwise given you, because
they just don't want to have aconfrontation with you.
Mike Todd (21:09):
Okay, here's a question what do you do when
you're presented with not ahostile adverse witness, but an
experienced expert witness whois good at I guess I would call
(21:33):
it manipulating their testimony?
Karen Koehler (21:37):
Well, we weren't going to talk about experts,
but it's still a good question,so we'll segue and talk about
the expert.
So for me there's a little bitmore preparation involved.
We would have taken theirdeposition, but now I'm on a
kick of taking it for no morethan an hour and mainly I just
want to do the ones that I don'tknow so I can understand.
Like, how am I going to getunder their skin?
(21:58):
I want to get under their skinreal quick and see what their
push points are.
So for me it's more tactile,like emotionally I'm looking for
what can they tolerate or not?
Where are they going to go?
How good are they going to beat staying neutral?
Are they going to be stayingneutral Like Bill Parton, who I
(22:18):
hate so much, who's finallyretired, the economist who used
to say that this person wasworth more dead than they were
alive?
Literally, that's horrible.
Anyway, he was pretty good attrying to act like he was never
bothered, but I could alwaysbother him.
But I could always bother him.
I could always bother him, andit's similar to what he's saying
(22:41):
, like where are their soft,squishy points?
But you also want to do it.
There's some people that thinkthat they can just take on an
expert on every point.
That is never good.
You have to have what do youwant to get out of your cross?
What is the one point or twopoints, maybe three points that
you want?
You don't want to take themthrough all their opinions and
(23:01):
then refute them Like that ishorribly boring.
You have to have a real,concrete idea, normally ahead of
time, of what those points are.
Mo Hamoudi (23:14):
I don't think experts generally make or break
a case.
I think that what experts whenthey're put on well?
Karen Koehler (23:21):
They do in medical negligence cases.
Mo Hamoudi (23:23):
Well, generally, I said yeah, I just said generally
speaking.
I don't think experts make orbreak a case.
But I think that what I try todo is with my experts.
I always tell them you're ateacher, you're not an expert.
So if you're educating, thejury's going to like you and
(23:45):
connect with you.
So what I try to do with theother experts is make sure that
they don't look like educators,that they look like something
else.
And so a good way to confrontand impeach an expert is to
demonstrate that they're not agood teacher, they've not done
all their homework or they'renot looking at all the
information, and then somethingas simple as that causes people
(24:11):
to be skeptical of people whohold themselves out as experts.
A lot of the times what I'veseen in the defense experts is
that some medical defenseexperts don't even examine the
client.
I mean, that's such an easything to sort of impeach an
expert on.
Karen Koehler (24:26):
This could be his whole topic.
But one of my favorite thingsto do with experts and it's very
difficult because there's afine line you don't want to
co-sign on that expert, but it'sto co-opt.
Some people call it hijack theexpert, co-opt the expert, which
is just figure out how they'regoing to endorse your case and
get a second whack at it.
In fact, it's one of myfavorite ways to use a defense
(24:48):
expert is to verify the pointsthat I need in my case in chief
get them to endorse them.
Mo Hamoudi (24:57):
That's an approach which is you find out where you
agree.
You have to be very carefulabout that.
You know it's like so we agreeon this.
Mike Todd (25:03):
Yeah, that sounds a little dangerous too.
Karen Koehler (25:06):
Yeah, but it can be very effective, especially
with damages experts, not somuch with liability, with
liability less so.
Mo Hamoudi (25:15):
I mean, when you're talking about economists, like
for our clients, somebody's deadyou say, well, how much were
they going to make in theirnatural lives?
Your expert says 5 million,their expert says 3 million, and
they both have an approach andthere's not much you can do to
say your approach is not as goodas mine, or you can do some
things.
Ultimately, my experience isthe jury splits the difference
(25:39):
or something along those lines.
It's hard to like sell on that,but I think that, like when
you're talking about a medicalexamination or a psychological
examination, and you have anexpert come in and say here's my
psychological opinion.
Your client does not sufferfrom X.
I go well, have you examinedthem?
Have you spent time with them?
And they go no, I looked at therecords.
(26:00):
And then you say that's an easyone with the jury.
You go.
Could you imagine somebodygiving you an opinion, a medical
opinion, without even having avisit with you and just reading
your records and saying this iswhat's happening with you.
That's an easy one.
Karen Koehler (26:12):
There's normally a direct relationship between
if a jury is going to go withyou and have you win the case
and which side of the economicsthey give you.
They don't often split the babySometimes they will but
normally if you're going to geta plaintiff verdict they're
going to go with the plaintiffeconomist and if you're going to
get a bad verdict or lesserverdict they're going to go with
(26:34):
the other economists.
In general there's some weirdthings about economists.
Economist testimony, anyway, isa weird thing.
We could talk about thatseparately.
Mike Todd (26:44):
Yeah, sorry to derail you with experts, no problem.
Karen Koehler (26:47):
Yeah, but you know, let's talk just really
quickly.
You know, some of the besttestimony in the world is lay
witness testimony and that'sfamily, friends, coworkers,
people from community, churchwork.
Those people are so goodbecause the more they testify,
(27:11):
the less the plaintiff has totestify.
So if there's one lesson totake away from here is people
put on the plaintiff has totestify you really.
So if there's one lesson totake away from here is people
put on the plaintiff for way toolong yeah, way too long.
Sweet spot 25 to 35 minutes orless.
Sweet spot when you haveeveryone else doing it.
(27:33):
Then the plaintiff doesn't haveto do it.
And who wants to, you knowasking?
You're basically asking them toprove your own case.
So I want to talk just a littlebit about plaintiff.
So I talked to you about lists.
I'm super against lists becausepeople it creates anxiety for
the witness, especially aplaintiff.
They got this list, they got toremember all these rules and
(27:55):
then they got to memorize ascript and then you know you put
so much on them and the waythat I prep a plaintiff witness
is completely different.
I say I'm oprah and you're myguest.
Or I say I'm your neighbor andwe're going to be catching up.
That's the tone that we havehere.
(28:17):
I'm going to ask questions andyou're going to answer them.
If you give a bad answer,that's my fault for not asking
you the right question.
I'm a good lawyer.
I will only ask you goodquestions.
Yeah, and when I teach this Itell lawyers who complain about
well, you know, the plaintiffdid a bad job.
You did a bad job, it's yourfault.
(28:42):
If you'd asked the rightquestions in the right way, then
the plaintiff would have done agood job.
So when I've had plaintiffsthat haven't done a good job and
there have been some I takeresponsibility for that.
Like, yeah, that did not gowell.
And I've had some where theyweren't prepped enough.
Normally I prep quite a bit, dothem by videotape, have
(29:04):
multiple meetings, we've alreadybeen together the whole case.
Um, you know they have an ideaof how to do it, but I don't
want to script it and I don'twant to overwhelm them and I
certainly don't want them to beso tired by the time that it
comes that they just talk rote.
Mo Hamoudi (29:24):
Yeah.
Karen Koehler (29:25):
And then there's two types of plaintiffs
witnesses general, there's thestoic, and then there's the one
that is the opposite of stoic,that can describe exactly how
burning and stabbing that painis, with the exact amount of
frequency, that has anencyclopedic knowledge of every
(29:49):
indignation that they have,indignity that they have
experienced or loss that they'vehad.
And they could go on for days.
The juries will always like thestoical.
They will always, and so ifyou're using lay witnesses, it's
fine, because they'retestifying for that guy or guy.
(30:11):
Meaning guy or guy for me islike gender neutral.
That's what a jury connectswith, because they're not
sitting there trying to provetheir case or whining in jury's
terminology.
The other witness is way moredifficult and with that witness
(30:32):
I want them on as short aspossible.
Mo Hamoudi (30:34):
And with lay witnesses, what they end up
doing is they become what I callyou're not allowed to put on
character testimony.
But lay witnesses providecontext to client character
because they describe them inday-to-day life and because the
jury feels a lot of the timesthat your client has been
prepped.
Yeah, and so you're absolutelyright that lay people are
(30:57):
essential People who see them,that they do the same things as
ordinary people and experiences.
I think that that's.
Karen Koehler (31:06):
But you're not quite there.
What I like about the laywitnesses isn't just the data.
I don't like the data.
The data to me doesn't meananything.
What they're getting from thoselay witnesses.
You can tell when a lay witnessloves the person or cares about
them, or I always ask them totell us stories.
(31:26):
I don't want to hear like theycould do this and now they can't
do this.
I want it all in story version.
Once we went and did this andthen this happened and
da-da-da-da-da.
I want the story.
I only want stories.
But there's a warmth, there's alove, there's that emotional
connection that that lay witnesshas with the plaintiff that
(31:47):
it's more than character.
It's like illustrating that theperson is—everything comes back
to love Mo.
The person is loved.
Yes, everything comes back tolove Mo.
The person is loved.
You call it human connection,but I call it.
It's that deeper thing, it'sthe love for that person.
Mike Todd (32:06):
Don't you also think, though, that people respond
more when they're hearing it notfrom the witness, like you said
, but from their friend, like Imean, if you, if you, if you
recommend a movie to someone,they're going to be more apt to
believe what you're't always getit from who you think, like you
(32:40):
said, you think they'reprepared, or you think they're
lying, or you think they don'tremember correctly, or or
whatever, but if you get it fromsomebody else, even if it's
exactly the same thing.
Karen Koehler (32:55):
You're going to believe that a little bit more.
And jurors want to make theright decisions, yeah, and so
they don't want to be misled orhave someone exaggerate
something.
So the more that you have thesetouch points for them, the more
comfortable they come of whothis person is.
Mo Hamoudi (33:11):
I agree with that.
I agree with that.
Karen Koehler (33:13):
Okay, but we need something exciting to end
this.
Mo Hamoudi (33:15):
I think what we can end with exciting is that about
witness examination.
Karen Koehler (33:24):
Well, that's what we're talking about.
Mo Hamoudi (33:26):
I think the exciting thing is I've had a
witness lie and I've caught himin a lie.
Karen Koehler (33:32):
Yeah.
Mo Hamoudi (33:34):
Your witness or defense's.
It was an adverse witness and Icaught him in a lie.
Yeah, your witness or defense,it was an adverse witness and I
caught him in a lie and it was abad lie.
And then I was graceful inouting the lie and the jury
liked that more.
Because the jury knew that thewitness lied and because I was
(33:56):
graceful it worked much more tomy advantage than had I been
more like you're a liar.
So sometimes I think, likedoing the obvious, you shouldn't
do it.
Karen Koehler (34:08):
And this is when I get irritated and jealous
listening to someone like Motalk about this, because it's so
much harder for a female triallawyer to do a lot of this stuff
.
Mo Hamoudi (34:18):
Can you tell me more?
I'm interested in that.
Karen Koehler (34:20):
Yeah, for example, I've had many witnesses
lie and I've caught them withthe lies and sometimes I become
aggressive and then later thejury says you guys, you were too
aggressive.
They don't like that, you know.
You have to be very carefulwhen you're a female trial
attorney with your emotions.
I've had them also say theopposite.
(34:40):
Why weren't you harder on thatperson?
You should have been harder onthat too soft.
And so, for a female trialattorney, you are constantly
navigating and having to be veryconscientious how you do things
.
Conscientious how you do things.
I have come to the realizationwhich is probably a good
realization anyway that for mewhat works is and you've
(35:01):
probably heard me say this Ineed permission from the jury
before I will become anythingother than kind.
I need to feel the jury sayingokay, that ticked us off.
We think that guy's lying, youshould go.
Mo Hamoudi (35:18):
How do you do that?
How do you know you havepermission?
Karen Koehler (35:20):
Just intuition I have to pay attention and you
can tell they start going likethis.
They start crossing their arms.
Some of them will be shakingtheir head.
You should see how many peopleshake their heads.
It's not hard to see it.
And then you can go, especiallyif you start feeling them
losing their temper yeah thenyou?
(35:41):
then you have to make thedecision.
Do I just not lose my temper?
Well, obviously you're notgoing to lose your temper.
But am I going to go after thisor am I going to just stay way,
way back in the friendly zone,or am I going to get?
You know, there's a whole range.
It's not just sweep and attack.
There's a whole range of stuffthat you do in between there.
But I am very much tuned intothe jury.
Mo Hamoudi (36:05):
So I think that would be a good topic next time.
I really want to explore morethe gender dynamics of trying a
case.
I think that would be a goodone.
Karen Koehler (36:14):
I want to talk about the trial.
Let me count the ways.
Mo Hamoudi (36:16):
Yeah, yeah, that was a good.
Well, you know, I think we need to do more
episodes that teach lawyers orhelp lawyers.
Young lawyers learn how to dodirect examinations, and I
thought that would be a goodtopic for us to discuss.
Karen Koehler (00:15):
I thought it would be a good topic to discuss
.
You just co-opted my topic andtook credit for it.
I'm just going to call it likeI see it.
Go ahead.
Mike Todd (00:26):
You guys are still spicy.
I can't.
Mo Hamoudi (00:30):
I'll never win with you.
There is never, never, a winwith you.
It's true.
Never a win.
Karen Koehler (00:36):
True, all right.
So I'll tell you a story.
So direct examination is whatwe're going to focus on, of the
plaintiff or of lay witnesses.
We won't do experts and wewon't do cross in general, but
we'll do direct of lay andplaintiff witnesses.
Okay, okay so, and in criminaltrials, of course, the accused
(00:58):
almost never testifies, so youprobably haven't had as much
practice with your clienttestifying as I have.
But I'll tell you this onestory.
I always, kind of I always canremember it and I'm going to
take you on my journey ofunderpreparing, overpreparing
and then how I prepare.
Now, I used to overprepare allmy witnesses because I was
(01:18):
trained as a defense lawyer andwe were trained to overprepare
on everything.
So that was the rigor.
I overprepared, we would havelists, we would have practice
sessions, and a lot of peoplestill do that today.
And when I started doing aplaintiff law, I still use that
rigor.
And what happens when you dothat?
(01:39):
In my experience as a lawyer,that's like me, which I am more
real, like I don't.
I hate scripted.
It sounded scripted, it was allcorrect.
It caused an enormous amount ofstress on the witness because
they had to memorize all thatand not make any mistakes and
(02:00):
you ended up with very stiltedtestimony that was correct but
not persuasive and, as we allknow from Paula Vera, trial is a
matter of impression, primarilyso.
I did that for years becausethat's what I was trained to do
and had to do as a defenselawyer and went on to a certain
extent and then I kind of didthe opposite, which is I did
(02:23):
nothing, very little.
I just assumed they alreadyknow what they're testifying to,
they're supposed to speak thetruth and they should just do it
.
Well, that had some interestingconsequences.
And now I have a differentapproach which I'll get to.
But I'll tell you this one storyof this one client.
She was one that I'd actuallyprepared.
(02:43):
She had prepared.
It was just a car accident, onethat I'd actually prepared.
Um, she had, she had prepared.
It was just a car accident caseand she was prepared, she knew
it wasn't complicated, she knewher stuff.
I put her on as a witness.
She had gone through hertestimony.
It wasn't flashy, it was fine,she did just totally fine.
The defense lawyer got up andstarted cross-examining her and
(03:04):
before I knew it, my client wasstanding up like this, yelling
at the defense attorney, thejury.
I just watched the juryinstantly hate my client oh boy.
Like you cannot have your clientyelling at the defense attorney
(03:27):
.
They're not supposed to be ableto do that, and I'm sure that I
had already told her.
You know those are one of therules, like, don't lose your
temper, oh boy.
And so the one thing that I wasalways good at was reading a
room and acting quickly.
So as soon as that happened, Ihad well, it was happening and I
(03:49):
was thinking this is terrible,what am I going to do?
So that's lesson number one isyou have to be in the moment.
You can't be thinking aboutanything else.
You got to be in the moment,and when you're in the moment in
direct exam, you are in themoment with your client, but you
also have to be sensing what'sgoing on with the jury all at
(04:10):
the same time, which can bedifficult if they're to your
side.
I also don't believe in infederal court.
You're handicapped because youhave to stand behind the stupid
podium, which I hate, um, and Iwish that they would grow up and
get rid of the stupid podium.
I hate the podium.
It's a barrier, it's us versusthem and it is an artifice that
(04:31):
I think is gross.
That said what you were trainedto do when you went to trial
class, or by my senior partnerswhen I was a defense lawyer, was
to always stand at the far endof the bar of the jury.
So the jury's lined up likehere and you're supposed to
stand at the far end of the barof the jury.
So the jury's lined up likehere and you're supposed to
stand at the far end and thenthe witness is way at the other
end and that way the jury willjust only look at the witness
(04:53):
and they will project and theywon't be going like this, but in
fact they will.
They'll be going like this andit's too far away.
It's like you're yelling atthem and then they're yelling
their answers back at you.
I don't ever do that.
Now I don't go stand right nextto them because then they'll
only look at me and I couldblock the jury.
But I will stand relativelyclose.
I'm very conscious of, and allcourtrooms are different.
(05:16):
So I want to figure out, likewhere am I going to be standing?
So I get back up there to dothe redirect and I've been
watching the jury.
I'm like what am I going to do?
It wasn't a long cross.
I'm getting up there to doredirect and I lit into her.
Yeah, I said, why are youyelling at the defense?
(05:38):
And I just lit into her and Ibecame angry.
Now I got a good plaintiffverdict and afterwards the jury
said that they were very bad atme and upset that I was so mean
to my client.
They had nothing bad to sayabout my client yelling at the
(06:00):
defense lawyer because they hadforgotten about it because I had
interviewed him.
Mike Todd (06:02):
Because you took it away.
Mo Hamoudi (06:03):
You took it away.
Karen Koehler (06:04):
I took it on.
Mike Todd (06:05):
Yeah.
Karen Koehler (06:07):
And that's what you have to do.
You have to be able to dowhatever you need to do for the
jury.
Mo Hamoudi (06:15):
Yeah.
Karen Koehler (06:15):
That's the difference.
Mo Hamoudi (06:17):
Yeah.
Karen Koehler (06:17):
I will always remember that, because I don't
even remember what I said to her.
I just came out and attackedher and the jury was just
shocked.
Mo Hamoudi (06:28):
That's a very effective technique.
Karen Koehler (06:31):
Well, I wouldn't recommend it to anybody else.
Mo Hamoudi (06:33):
Well, no, but what you did is what Mike just
described is that you took awayyour client, was transitioning
from being a protagonist into anantagonist and you made
yourself the antagonist, whichcaused the jury to want to
protect the client.
Yes, and I think that's aneffective technique in trying to
draw back and shift energy.
Karen Koehler (06:55):
But it wasn't something that you would ever
learn in law school?
Mo Hamoudi (06:58):
No, no.
Karen Koehler (06:58):
It was not appropriate exam.
I mean, everything I said wasfine, but it wasn't a textbook.
A textbook, I wouldn't tell youthat.
There's this thing that youhave to do in trial, that is,
read the room and be present,and most lawyers have a very
(07:19):
hard time doing that.
Oh boy.
That's true there, and when youhear the term multitasking, that
is a hard term.
Most people will say they canmultitask, but most people can't
, and even the people that canmultitask, it's never as good as
just having one thing that youcould focus on.
However, I pretty much canmultitask, and that allowed me
(07:43):
to be able to do that.
Now, maybe I could do it betterif I only had, you know, two
things instead of four things tobe considered, because I had a
whole other list of things thatI could have also talked about,
address things on the meritsmore, or done something else,
but being able to read that room, so it's an emotional thing,
yeah, so I'm going to give youone more example.
So so I it's happened twice tome.
Mo Hamoudi (08:10):
Okay.
Karen Koehler (08:11):
Um, it happened in two different cases where I
had a horrendous eyewitnesshorrendous was going to kill the
case.
Um, the first case theeyewitness was following another
vehicle going the other way.
Um, so my client was comingtowards them and the witness was
behind the vehicle that crossedthe center line, hit him.
(08:33):
This is a fire truck case.
I think I told you the ambulancecase and what I did was in
deposition I had to map it out,but then I had the wrong map.
I didn't mean to really confusethings, but I had things all
kind of mixed up and the witnessgot very upset and angry with
me.
And then I said I find out allthe I don't knows, like what
color was the car, I don't know,what time of day I get all the
(08:56):
I don't knows, but I'msprinkling them all through the
deposition.
I don't ask them all one at atime.
I'm getting all these I don'tknows.
And then I very specific andthen I said well, what happened
after the crash?
You ran out to her aid?
No, I didn't.
Why not?
Well, I'm scared of blood.
Oh, you didn't go becauseyou're scared of blood, but like
you were the first one thatcould have gotten there, what
(09:18):
did you do instead?
So when we got to trial, Icalled the witness because I
needed to.
He was the most troublingwitness and what do you think I
did?
Mo Hamoudi (09:29):
What did you do?
Mike Todd (09:30):
Well, first of all, All the I don't knows in a row
right away.
Karen Koehler (09:35):
I did all the I don't knows.
But the second thing I did is Iasked him to diagram the
incident and he refused.
Now he refused because the lasttime it happened in the
deposition he got angry at mebecause I was using the wrong
diagram and he had to redo itand he thought I was trying to
confuse him and mislead him.
And I'm like I'm so sorry, I'mjust, you know, sometimes I just
(09:57):
don't get things right, youknow.
But I knew I had triggered him.
So he refused and but the jurydoesn't know anything about the
history.
They're just like this guywon't even draw a simple diagram
.
He refused to do it and then Isaid why didn't you go and check
on her?
And he said, well, no, I didn'tgo check on her, why not?
Well, I was scared of the blood.
(10:18):
I mean, they disbelieved himentirely.
Mo Hamoudi (10:24):
It was a refusal to cooperate and draw a diagram.
Karen Koehler (10:28):
So this next witness, which was the
motorcycle case, who said thatmy client was going 80 or 90
miles per hour before impact,and he was an FAA guy, so he was
a person that's used totracking relative speeds.
Mo Hamoudi (10:45):
Speed to distance, yeah.
Karen Koehler (10:47):
I mean, this is a disaster.
Right Could be, but I'd takenhis deposition and I had pissed
him off.
I can't even remember why, butI knew.
I knew why and I had also askedhim all the I don't knows, all
I don't knows which, there endsup being like 20 of them, and
when you put them all together,they're great.
Mike Todd (11:06):
Yeah, that looks really bad.
It's really bad when you havethem all in a row.
Karen Koehler (11:09):
However, what's even better is my first question
to him.
When he got up on the stand, hegot up on the stand.
He was very angry to be there.
Again, he hated me indeposition.
He was very angry to be thereand actually he wasn't even
there, it was by Zoom.
He refused to come.
Mo Hamoudi (11:32):
And the first question I said what was the
first question?
Karen Koehler (11:39):
Did you tell my staff to F off when they tried
to bring you here to court?
What?
Mo Hamoudi (11:43):
And he went off.
What did he go off?
He didn't.
What did he say?
Karen Koehler (11:49):
I don't need to be here.
How dare you make me come tocourt?
He went crazy and then thewhole thing was a battle and the
jury hated him.
He was disrespectful to me, hewas disrespectful to the judge.
The judge wanted me to end itand I'm like, yeah, I'm not
ending this, I'm keeping going.
It was horrible testimony.
Mike Todd (12:10):
Well what you're talking.
How did the jury react to that?
Karen Koehler (12:12):
Well, I was just as sweet as, and all the time
for each of these.
I'm just as sweet as calm andlike I have no idea what's going
on.
I mean I don't know what'shappening here, what, what I
mean, the softer I get and Ijust let him do it.
The jury hated him, disregardedhim.
Mo Hamoudi (12:34):
You're describing techniques that you're using
with friendly witnesses andadverse witnesses.
This gentleman was both adversewitnesses and the setup for the
examination occurred in thedeposition.
You understood what histemperament was, you understood
what the trigger was, and thenyou went in and used the trigger
to have him diminish hiscredibility in front of the jury
(12:54):
and ultimately discredit himand discredit the defense In a
very sweet way.
In a sweet way, and yet no,that's not taught in law school.
Karen Koehler (13:04):
No, but how do you even do that?
Like your first question isliterally going to be did you
tell my staff to F off?
Well, I mean, when you do thatfirst of all, rory Lee did not
see that coming and didn'tobject to it.
Yeah, but you know it goes tomotivation and why you're there.
It's completely not irrelevant.
Mo Hamoudi (13:24):
No, I think it's totally relevant.
It's relevant.
He's a combative witness.
Karen Koehler (13:29):
I just wanted to get that set that record
straight and I did.
Yeah, so those are someexamples of things that you you
cannot prepare for this likepeople think people over prepare
so much in trial and I thinkthat you should prepare like I.
(13:51):
It's not that I don't prepare,I prepared, but if you don't
give yourself space, you can'tsee the courtroom.
Mo Hamoudi (13:59):
I totally agree.
Karen Koehler (14:01):
People, how?
Tell me, let's talk aboutseeing the courtroom, because
for me, the most important partabout examination is how it
lands.
It's not how the witness iseven doing.
They can be doing technicallyeverything perfectly, it's do.
These people seem to care.
Mike Todd (14:21):
Well, that's the most important thing is what the
jury is thinking.
Karen Koehler (14:23):
But most people can't see the jury or they're
not focusing on the jury.
They're wanting to make surethat answers are correct.
Mike Todd (14:29):
Yeah, they can't do that yeah.
Mo Hamoudi (14:33):
I mean.
For me, it's a couple of things.
One law school didn't teach mehow to move and be in a
courtroom or how to examinewitnesses.
Karen Koehler (14:52):
Let's talk about being and moving in a courtroom
, especially in the context of adirect exam I talked a little
bit about.
My placement is typicallyfairly close to the witness, not
on top of them, but in anintimate setting, like we're
having a conversation.
You know, I'm having aconversation and you have, and
they always say, would youplease speak up?
Or I have to hold a microphoneor something like that, and I
don't, I don't care, I'm happyto do either, but you don't ever
(15:15):
have to be told to speak upbecause, you were very loud.
Mo Hamoudi (15:18):
Yes.
Karen Koehler (15:19):
But talk to us about body voice.
Where do you go in thecourtroom when you're examining
witness?
Mo Hamoudi (15:25):
Well, first, I'm a Meisner-trained actor.
I was in New York, I was anactor.
I was in New York, I was anactor, I was a writer.
Karen Koehler (15:31):
So my Wait a minute, meisner is who.
Mo Hamoudi (15:33):
Sandy Meisner.
He is like Stella Adler, who isa technique of learning how to
act, and Meisner training isShow us.
It's oh, I can show you.
Karen Koehler (15:46):
Okay, wait, who are you going to be?
Mo Hamoudi (15:47):
Who are you going to be?
Karen Koehler (15:49):
I don't know You're leading this.
Mo Hamoudi (15:50):
No, you're leading this.
I am you going to be?
Who are you?
Karen Koehler (15:52):
going to be.
I don't know.
You're leading this.
No, you're leading this.
I am.
Who should I be?
Mo Hamoudi (15:54):
You can be whoever you want.
We're doing Meisner right now.
That's Meisner.
Mike Todd (15:59):
That's what I was going to say.
He's already doing it to you,I'm doing it.
Mo Hamoudi (16:02):
So the Meisner technique.
There's the Adler technique,which is what's called the
method acting, which is you tapinto an experience that you know
well and you call on to thatexperience from a historical
experience could be trauma andyou rely on that to be in
character.
Meisner is about listening,listening to understand, as
(16:26):
opposed to listening to want torespond.
Karen Koehler (16:30):
Wait, repeat that and explain.
Mo Hamoudi (16:32):
Okay, you're listening to the person to
understand where they're at andwhat they're saying, and then,
when you understand, then yourespond.
So in a setting of a courtroomit translates actually really
well.
It's a technique that I used topractice when I bartended, so I
(16:54):
used to work on rolls, and whenI'd go to auditions I would
just use the technique while Iserved people drinks.
So when I do an examination,Like what?
Karen Koehler (17:11):
Can I have a rum and coke?
Mo Hamoudi (17:14):
What's your name?
Karen Koehler (17:16):
Sally.
Mo Hamoudi (17:17):
Sally, where are you from?
Karen Koehler (17:19):
Houston.
Mo Hamoudi (17:20):
Houston, when did you come to New York City?
Karen Koehler (17:23):
When did you come to New York City?
Mo Hamoudi (17:25):
I've been here since 2000.
Karen Koehler (17:28):
Oh well, I was there since 2005.
Mo Hamoudi (17:32):
Do you like New York City?
Karen Koehler (17:33):
Yeah, do you, I love it.
Mo Hamoudi (17:35):
Why do you like New York City?
Karen Koehler (17:37):
Well, because I can meet fun people like you.
Mo Hamoudi (17:39):
So what we're just doing is that we're having an
intimate conversation and we'rebuilding rapport.
What juries want, whataudiences want, is they want to
get inside an intimaterelationship.
They want to get to know peopleand you can use this technique
(18:00):
to get the jury to know you,because ultimately, you're going
to go talk to the jury inclosing and they got to trust
you.
You can talk to them or theycan get to know you through
watching you have conversationwith somebody else, and so my
approach is to have aconversation, an intimate
conversation, with a witness andlet the jury within that
(18:22):
conversation Now sometimes theseare what I'm talking about are
friendly witnesses and, forexample, in the Taylor trial, if
you go back and watch myexamination of Summer's brother,
my entire examination was basedon this technique, was getting
to know him and he getting toknow me and the jury getting
(18:46):
insight into that.
Now, my movements areintentional.
You will see me move in acourtroom between questions I
ask because I'm creatingdistance between myself and the
jury, coming closer to them.
I'm actually trying to createphysical intimacy with the jury
so that the jury trusts me thecloser I get to them and the
(19:08):
witness the same way.
Karen Koehler (19:10):
He's more calculated than I am.
Mo Hamoudi (19:12):
I mean.
Karen Koehler (19:13):
I'm very intuitive.
I'm just I'm feeling it.
I feel it if they like me ordon't like me, if they're
leaning in or not.
I'm something about me.
I can tell the micro movements.
I can feel it really well.
It's always been a pretty goodstrength of mine.
I can tell when they don't likeme and when I'm going to be in
trouble.
Mo Hamoudi (19:30):
You're talking about.
They don't like you.
Who's that?
Karen Koehler (19:32):
The jury.
I'm only talking about the jury.
Okay, but so I don't, I don't,I'm not intentional.
Mo Hamoudi (19:43):
Well, I guess, as you are, well, I wouldn't say
I'm intentional.
You just said you wereintentional.
Karen Koehler (19:45):
I'm saying okay, let me reframe Quote unquote
yeah, every movement I make isintentional.
End of quote.
Mo Hamoudi (19:50):
Okay, fair, but it is.
But I can tell you right nowthat you can't tell that I'm
being intentional.
No one is able to tell what thehell I'm doing.
No one's able to sit back andgo oh, that's dumb.
Karen Koehler (20:00):
Now I know.
Well, now you know he's doingthe walk.
Mo Hamoudi (20:06):
No one's going to be able to go.
Oh, now they all know.
Well, yeah, now they know.
But the second thing is thatyou can get people to like you
through this process.
If they don't like you, you canget them at a minimum to trust
what you're saying.
It is through the intimacy I amtelling you.
(20:29):
It's creating intimate momentsbetween a witness and yourself.
Now, strategy-wise, what I'lldo is, if I interview a witness
before they take the stand andlet's say they are an adverse
witness, I will be veryaggressive with them outside of
the courtroom, Okay, and thenwhen I come into the courtroom,
(20:53):
I flip.
Karen Koehler (20:54):
Same, exact Same .
That's what I just explained,yeah.
Mo Hamoudi (20:57):
Yeah, so that approach it's very effective.
It throws the witness off andthen they start to just give you
things that they would not haveotherwise given you, because
they just don't want to have aconfrontation with you.
Mike Todd (21:09):
Okay, here's a question what do you do when
you're presented with not ahostile adverse witness, but an
experienced expert witness whois good at I guess I would call
(21:33):
it manipulating their testimony?
Karen Koehler (21:37):
Well, we weren't going to talk about experts,
but it's still a good question,so we'll segue and talk about
the expert.
So for me there's a little bitmore preparation involved.
We would have taken theirdeposition, but now I'm on a
kick of taking it for no morethan an hour and mainly I just
want to do the ones that I don'tknow so I can understand.
Like, how am I going to getunder their skin?
(21:58):
I want to get under their skinreal quick and see what their
push points are.
So for me it's more tactile,like emotionally I'm looking for
what can they tolerate or not?
Where are they going to go?
How good are they going to beat staying neutral?
Are they going to be stayingneutral Like Bill Parton, who I
(22:18):
hate so much, who's finallyretired, the economist who used
to say that this person wasworth more dead than they were
alive?
Literally, that's horrible.
Anyway, he was pretty good attrying to act like he was never
bothered, but I could alwaysbother him.
But I could always bother him.
I could always bother him, andit's similar to what he's saying
(22:41):
, like where are their soft,squishy points?
But you also want to do it.
There's some people that thinkthat they can just take on an
expert on every point.
That is never good.
You have to have what do youwant to get out of your cross?
What is the one point or twopoints, maybe three points that
you want?
You don't want to take themthrough all their opinions and
(23:01):
then refute them Like that ishorribly boring.
You have to have a real,concrete idea, normally ahead of
time, of what those points are.
Mo Hamoudi (23:14):
I don't think experts generally make or break
a case.
I think that what experts whenthey're put on well?
Karen Koehler (23:21):
They do in medical negligence cases.
Mo Hamoudi (23:23):
Well, generally, I said yeah, I just said generally
speaking.
I don't think experts make orbreak a case.
But I think that what I try todo is with my experts.
I always tell them you're ateacher, you're not an expert.
So if you're educating, thejury's going to like you and
(23:45):
connect with you.
So what I try to do with theother experts is make sure that
they don't look like educators,that they look like something
else.
And so a good way to confrontand impeach an expert is to
demonstrate that they're not agood teacher, they've not done
all their homework or they'renot looking at all the
information, and then somethingas simple as that causes people
(24:11):
to be skeptical of people whohold themselves out as experts.
A lot of the times what I'veseen in the defense experts is
that some medical defenseexperts don't even examine the
client.
I mean, that's such an easything to sort of impeach an
expert on.
Karen Koehler (24:26):
This could be his whole topic.
But one of my favorite thingsto do with experts and it's very
difficult because there's afine line you don't want to
co-sign on that expert, but it'sto co-opt.
Some people call it hijack theexpert, co-opt the expert, which
is just figure out how they'regoing to endorse your case and
get a second whack at it.
In fact, it's one of myfavorite ways to use a defense
(24:48):
expert is to verify the pointsthat I need in my case in chief
get them to endorse them.
Mo Hamoudi (24:57):
That's an approach which is you find out where you
agree.
You have to be very carefulabout that.
You know it's like so we agreeon this.
Mike Todd (25:03):
Yeah, that sounds a little dangerous too.
Karen Koehler (25:06):
Yeah, but it can be very effective, especially
with damages experts, not somuch with liability, with
liability less so.
Mo Hamoudi (25:15):
I mean, when you're talking about economists, like
for our clients, somebody's deadyou say, well, how much were
they going to make in theirnatural lives?
Your expert says 5 million,their expert says 3 million, and
they both have an approach andthere's not much you can do to
say your approach is not as goodas mine, or you can do some
things.
Ultimately, my experience isthe jury splits the difference
(25:39):
or something along those lines.
It's hard to like sell on that,but I think that, like when
you're talking about a medicalexamination or a psychological
examination, and you have anexpert come in and say here's my
psychological opinion.
Your client does not sufferfrom X.
I go well, have you examinedthem?
Have you spent time with them?
And they go no, I looked at therecords.
(26:00):
And then you say that's an easyone with the jury.
You go.
Could you imagine somebodygiving you an opinion, a medical
opinion, without even having avisit with you and just reading
your records and saying this iswhat's happening with you.
That's an easy one.
Karen Koehler (26:12):
There's normally a direct relationship between
if a jury is going to go withyou and have you win the case
and which side of the economicsthey give you.
They don't often split the babySometimes they will but
normally if you're going to geta plaintiff verdict they're
going to go with the plaintiffeconomist and if you're going to
get a bad verdict or lesserverdict they're going to go with
(26:34):
the other economists.
In general there's some weirdthings about economists.
Economist testimony, anyway, isa weird thing.
We could talk about thatseparately.
Mike Todd (26:44):
Yeah, sorry to derail you with experts, no problem.
Karen Koehler (26:47):
Yeah, but you know, let's talk just really
quickly.
You know, some of the besttestimony in the world is lay
witness testimony and that'sfamily, friends, coworkers,
people from community, churchwork.
Those people are so goodbecause the more they testify,
(27:11):
the less the plaintiff has totestify.
So if there's one lesson totake away from here is people
put on the plaintiff has totestify you really.
So if there's one lesson totake away from here is people
put on the plaintiff for way toolong yeah, way too long.
Sweet spot 25 to 35 minutes orless.
Sweet spot when you haveeveryone else doing it.
(27:33):
Then the plaintiff doesn't haveto do it.
And who wants to, you knowasking?
You're basically asking them toprove your own case.
So I want to talk just a littlebit about plaintiff.
So I talked to you about lists.
I'm super against lists becausepeople it creates anxiety for
the witness, especially aplaintiff.
They got this list, they got toremember all these rules and
(27:55):
then they got to memorize ascript and then you know you put
so much on them and the waythat I prep a plaintiff witness
is completely different.
I say I'm oprah and you're myguest.
Or I say I'm your neighbor andwe're going to be catching up.
That's the tone that we havehere.
(28:17):
I'm going to ask questions andyou're going to answer them.
If you give a bad answer,that's my fault for not asking
you the right question.
I'm a good lawyer.
I will only ask you goodquestions.
Yeah, and when I teach this Itell lawyers who complain about
well, you know, the plaintiffdid a bad job.
You did a bad job, it's yourfault.
(28:42):
If you'd asked the rightquestions in the right way, then
the plaintiff would have done agood job.
So when I've had plaintiffsthat haven't done a good job and
there have been some I takeresponsibility for that.
Like, yeah, that did not gowell.
And I've had some where theyweren't prepped enough.
Normally I prep quite a bit, dothem by videotape, have
(29:04):
multiple meetings, we've alreadybeen together the whole case.
Um, you know they have an ideaof how to do it, but I don't
want to script it and I don'twant to overwhelm them and I
certainly don't want them to beso tired by the time that it
comes that they just talk rote.
Mo Hamoudi (29:24):
Yeah.
Karen Koehler (29:25):
And then there's two types of plaintiffs
witnesses general, there's thestoic, and then there's the one
that is the opposite of stoic,that can describe exactly how
burning and stabbing that painis, with the exact amount of
frequency, that has anencyclopedic knowledge of every
(29:49):
indignation that they have,indignity that they have
experienced or loss that they'vehad.
And they could go on for days.
The juries will always like thestoical.
They will always, and so ifyou're using lay witnesses, it's
fine, because they'retestifying for that guy or guy.
(30:11):
Meaning guy or guy for me islike gender neutral.
That's what a jury connectswith, because they're not
sitting there trying to provetheir case or whining in jury's
terminology.
The other witness is way moredifficult and with that witness
(30:32):
I want them on as short aspossible.
Mo Hamoudi (30:34):
And with lay witnesses, what they end up
doing is they become what I callyou're not allowed to put on
character testimony.
But lay witnesses providecontext to client character
because they describe them inday-to-day life and because the
jury feels a lot of the timesthat your client has been
prepped.
Yeah, and so you're absolutelyright that lay people are
(30:57):
essential People who see them,that they do the same things as
ordinary people and experiences.
I think that that's.
Karen Koehler (31:06):
But you're not quite there.
What I like about the laywitnesses isn't just the data.
I don't like the data.
The data to me doesn't meananything.
What they're getting from thoselay witnesses.
You can tell when a lay witnessloves the person or cares about
them, or I always ask them totell us stories.
(31:26):
I don't want to hear like theycould do this and now they can't
do this.
I want it all in story version.
Once we went and did this andthen this happened and
da-da-da-da-da.
I want the story.
I only want stories.
But there's a warmth, there's alove, there's that emotional
connection that that lay witnesshas with the plaintiff that
(31:47):
it's more than character.
It's like illustrating that theperson is—everything comes back
to love Mo.
The person is loved.
Yes, everything comes back tolove Mo.
The person is loved.
You call it human connection,but I call it.
It's that deeper thing, it'sthe love for that person.
Mike Todd (32:06):
Don't you also think, though, that people respond
more when they're hearing it notfrom the witness, like you said
, but from their friend, like Imean, if you, if you, if you
recommend a movie to someone,they're going to be more apt to
believe what you're't always getit from who you think, like you
(32:40):
said, you think they'reprepared, or you think they're
lying, or you think they don'tremember correctly, or or
whatever, but if you get it fromsomebody else, even if it's
exactly the same thing.
Karen Koehler (32:55):
You're going to believe that a little bit more.
And jurors want to make theright decisions, yeah, and so
they don't want to be misled orhave someone exaggerate
something.
So the more that you have thesetouch points for them, the more
comfortable they come of whothis person is.
Mo Hamoudi (33:11):
I agree with that.
I agree with that.
Karen Koehler (33:13):
Okay, but we need something exciting to end
this.
Mo Hamoudi (33:15):
I think what we can end with exciting is that about
witness examination.
Karen Koehler (33:24):
Well, that's what we're talking about.
Mo Hamoudi (33:26):
I think the exciting thing is I've had a
witness lie and I've caught himin a lie.
Karen Koehler (33:32):
Yeah.
Mo Hamoudi (33:34):
Your witness or defense's.
It was an adverse witness and Icaught him in a lie.
Yeah, your witness or defense,it was an adverse witness and I
caught him in a lie and it was abad lie.
And then I was graceful inouting the lie and the jury
liked that more.
Because the jury knew that thewitness lied and because I was
(33:56):
graceful it worked much more tomy advantage than had I been
more like you're a liar.
So sometimes I think, likedoing the obvious, you shouldn't
do it.
Karen Koehler (34:08):
And this is when I get irritated and jealous
listening to someone like Motalk about this, because it's so
much harder for a female triallawyer to do a lot of this stuff
.
Mo Hamoudi (34:18):
Can you tell me more?
I'm interested in that.
Karen Koehler (34:20):
Yeah, for example, I've had many witnesses
lie and I've caught them withthe lies and sometimes I become
aggressive and then later thejury says you guys, you were too
aggressive.
They don't like that, you know.
You have to be very carefulwhen you're a female trial
attorney with your emotions.
I've had them also say theopposite.
(34:40):
Why weren't you harder on thatperson?
You should have been harder onthat too soft.
And so, for a female trialattorney, you are constantly
navigating and having to be veryconscientious how you do things
.
Conscientious how you do things.
I have come to the realizationwhich is probably a good
realization anyway that for mewhat works is and you've
(35:01):
probably heard me say this Ineed permission from the jury
before I will become anythingother than kind.
I need to feel the jury sayingokay, that ticked us off.
We think that guy's lying, youshould go.
Mo Hamoudi (35:18):
How do you do that?
How do you know you havepermission?
Karen Koehler (35:20):
Just intuition I have to pay attention and you
can tell they start going likethis.
They start crossing their arms.
Some of them will be shakingtheir head.
You should see how many peopleshake their heads.
It's not hard to see it.
And then you can go, especiallyif you start feeling them
losing their temper yeah thenyou?
(35:41):
then you have to make thedecision.
Do I just not lose my temper?
Well, obviously you're notgoing to lose your temper.
But am I going to go after thisor am I going to just stay way,
way back in the friendly zone,or am I going to get?
You know, there's a whole range.
It's not just sweep and attack.
There's a whole range of stuffthat you do in between there.
But I am very much tuned intothe jury.
Mo Hamoudi (36:05):
So I think that would be a good topic next time.
I really want to explore morethe gender dynamics of trying a
case.
I think that would be a goodone.
Karen Koehler (36:14):
I want to talk about the trial.
Let me count the ways.
Mo Hamoudi (36:16):
Yeah, yeah, that was a good.
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