The Velvet Hammer™ Podcast

Mastering the Art of Direct Examination

Karen Koehler and Mo Hamoudi Season 5 Episode 26

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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Mo Hamoudi :

Well, you know, I think we need to do more episodes that teach lawyers or help lawyers. Young lawyers learn how to do direct examinations, and I thought that would be a good topic for us to discuss.

Karen Koehler :

I thought it would be a good topic to discuss. You just co-opted my topic and took credit for it. I'm just going to call it like I see it. Go ahead.

Mike Todd:

You guys are still spicy. I can't.

Mo Hamoudi :

I'll never win with you. There is never, never, a win with you. It's true. Never a win.

Karen Koehler :

True, all right. So I'll tell you a story. So direct examination is what we're going to focus on, of the plaintiff or of lay witnesses. We won't do experts and we won't do cross in general, but we'll do direct of lay and plaintiff witnesses. Okay, okay so, and in criminal trials, of course, the accused almost never testifies, so you probably haven't had as much practice with your client testifying as I have. But I'll tell you this one story.

Karen Koehler :

I always, kind of I always can remember it and I'm going to take you on my journey of underpreparing, overpreparing and then how I prepare. Now, I used to overprepare all my witnesses because I was trained as a defense lawyer and we were trained to overprepare on everything. So that was the rigor. I overprepared, we would have lists, we would have practice sessions, and a lot of people still do that today. And when I started doing a plaintiff law, I still use that rigor.

Karen Koehler :

And what happens when you do that? 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 all correct. It caused an enormous amount of stress on the witness because they had to memorize all that and not make any mistakes and you ended up with very stilted testimony that was correct but not persuasive and, as we all know from Paula Vera, trial is a matter of impression, primarily so. I did that for years because that's what I was trained to do and had to do as a defense lawyer and went on to a certain extent and then I kind of did the opposite, which is I did nothing, very little. I just assumed they already know what they're testifying to, they're supposed to speak the truth and they should just do it. Well, that had some interesting consequences. And now I have a different approach which I'll get to.

Karen Koehler :

But I'll tell you this one story of this one client. She was one that I'd actually prepared. She had prepared. It was just a car accident, one that I'd actually prepared. Um, she had, she had prepared. It was just a car accident case and she was prepared, she knew it wasn't complicated, she knew her stuff. I put her on as a witness. She had gone through her testimony. It wasn't flashy, it was fine, she did just totally fine. The defense lawyer got up and started cross-examining her and before I knew it, my client was standing up like this, yelling at the defense attorney, the jury. I just watched the jury instantly hate my client oh boy.

Karen Koehler :

Like you cannot have your client yelling at the defense attorney. They're not supposed to be able to do that, and I'm sure that I had already told her. You know those are one of the rules, like, don't lose your temper, oh boy. And so the one thing that I was always good at was reading a room and acting quickly. So as soon as that happened, I had well, it was happening and I was thinking this is terrible, what am I going to do? So that's lesson number one is you have to be in the moment. You can't be thinking about anything else. You got to be in the moment, and when you're in the moment in direct exam, you are in the moment with your client, but you also have to be sensing what's going on with the jury all at the same time, which can be difficult if they're to your side.

Karen Koehler :

I also don't believe in in federal court. You're handicapped because you have to stand behind the stupid podium, which I hate, um, and I wish that they would grow up and get rid of the stupid podium. I hate the podium. It's a barrier, it's us versus them and it is an artifice that I think is gross. That said what you were trained to do when you went to trial class, or by my senior partners when I was a defense lawyer, was to always stand at the far end of the bar of the jury. So the jury's lined up like here and you're supposed to stand at the far end of the bar of the jury. So the jury's lined up like here and you're supposed to stand at the far end and then the witness is way at the other end and that way the jury will just only look at the witness and they will project and they won't be going like this, but in fact they will. They'll be going like this and it's too far away. It's like you're yelling at them and then they're yelling their answers back at you. I don't ever do that. Now I don't go stand right next to them because then they'll only look at me and I could block the jury. But I will stand relatively close.

Karen Koehler :

I'm very conscious of, and all courtrooms are different. So I want to figure out, like where am I going to be standing? So I get back up there to do the 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 do redirect and I lit into her. Yeah, I said, why are you yelling at the defense? And I just lit into her and I became angry. Now I got a good plaintiff verdict and afterwards the jury said that they were very bad at me and upset that I was so mean to my client. They had nothing bad to say about my client yelling at the defense lawyer because they had forgotten about it because I had interviewed him.

Mike Todd:

Because you took it away.

Mo Hamoudi :

You took it away.

Karen Koehler :

I took it on.

Mike Todd:

Yeah.

Karen Koehler :

And that's what you have to do. You have to be able to do whatever you need to do for the jury.

Mo Hamoudi :

Yeah.

Karen Koehler :

That's the difference.

Mo Hamoudi :

Yeah.

Karen Koehler :

I will always remember that, because I don't even remember what I said to her. I just came out and attacked her and the jury was just shocked.

Mo Hamoudi :

That's a very effective technique.

Karen Koehler :

Well, I wouldn't recommend it to anybody else.

Mo Hamoudi :

Well, no, but what you did is what Mike just described is that you took away your client, was transitioning from being a protagonist into an antagonist and you made yourself the antagonist, which caused the jury to want to protect the client. Yes, and I think that's an effective technique in trying to draw back and shift energy.

Karen Koehler :

But it wasn't something that you would ever learn in law school?

Mo Hamoudi :

No, no.

Karen Koehler :

It was not appropriate exam. I mean, everything I said was fine, but it wasn't a textbook. A textbook, I wouldn't tell you that. There's this thing that you have to do in trial, that is, read the room and be present, and most lawyers have a very hard time doing that. Oh boy.

Karen Koehler :

That's true there, and when you hear the term multitasking, that is a hard term. Most people will say they can multitask, but most people can't, and even the people that can multitask, it's never as good as just having one thing that you could focus on. However, I pretty much can multitask, and that allowed me to be able to do that. Now, maybe I could do it better if I only had, you know, two things instead of four things to be considered, because I had a whole other list of things that I could have also talked about, address things on the merits more, or done something else, but being able to read that room, so it's an emotional thing, yeah, so I'm going to give you one more example. So so I it's happened twice to me.

Mo Hamoudi :

Okay.

Karen Koehler :

Um, it happened in two different cases where I had a horrendous eyewitness horrendous was going to kill the case. Um, the first case the eyewitness was following another vehicle going the other way. Um, so my client was coming towards them and the witness was behind the vehicle that crossed the center line, hit him. This is a fire truck case.

Karen Koehler :

I think I told you the ambulance case 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 confuse things, but I had things all kind of mixed up and the witness got very upset and angry with me. And then I said I find out all the I don't knows, like what color was the car, I don't know, what time of day I get all the I don't knows, but I'm sprinkling them all through the deposition. I don't ask them all one at a time. I'm getting all these I don't knows. And then I very specific and then 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 because you're scared of blood, but like you were the first one that could have gotten there, what did you do instead? So when we got to trial, I called the witness because I needed to. He was the most troubling witness and what do you think I did?

Mo Hamoudi :

What did you do?

Mike Todd:

Well, first of all, All the I don't knows in a row right away.

Karen Koehler :

I did all the I don't knows. But the second thing I did is I asked him to diagram the incident and he refused. Now he refused because the last time it happened in the deposition he got angry at me because I was using the wrong diagram and he had to redo it and he thought I was trying to confuse him and mislead him. And I'm like I'm so sorry, I'm just, you know, sometimes I just don't get things right, you know. But I knew I had triggered him. So he refused and but the jury doesn't know anything about the history. They're just like this guy won't even draw a simple diagram. He refused to do it and then I said why didn't you go and check on her? And he said, well, no, I didn't go check on her, why not? Well, I was scared of the blood. I mean, they disbelieved him entirely.

Mo Hamoudi :

It was a refusal to cooperate and draw a diagram.

Karen Koehler :

So this next witness, which was the motorcycle case, who said that my 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 to tracking relative speeds.

Mo Hamoudi :

Speed to distance, yeah.

Karen Koehler :

I mean, this is a disaster. Right Could be, but I'd taken his deposition and I had pissed him off. I can't even remember why, but I knew. I knew why and I had also asked him all the I don't knows, all I don't knows which, there ends up being like 20 of them, and when you put them all together, they're great.

Mike Todd:

Yeah, that looks really bad. It's really bad when you have them all in a row.

Karen Koehler :

However, what's even better is my first question to him. When he got up on the stand, he got up on the stand. He was very angry to be there. Again, he hated me in deposition. He was very angry to be there and actually he wasn't even there, it was by Zoom. He refused to come.

Mo Hamoudi :

And the first question I said what was the first question?

Karen Koehler :

Did you tell my staff to F off when they tried to bring you here to court? What?

Mo Hamoudi :

And he went off. What did he go off? He didn't. What did he say?

Karen Koehler :

I don't need to be here. How dare you make me come to court? He went crazy and then the whole thing was a battle and the jury hated him. He was disrespectful to me, he was disrespectful to the judge. The judge wanted me to end it and I'm like, yeah, I'm not ending this, I'm keeping going. It was horrible testimony.

Mike Todd:

Well what you're talking. How did the jury react to that?

Karen Koehler :

Well, I was just as sweet as, and all the time for each of these. I'm just as sweet as calm and like I have no idea what's going on. I mean I don't know what's happening here, what, what I mean, the softer I get and I just let him do it. The jury hated him, disregarded him.

Mo Hamoudi :

You're describing techniques that you're using with friendly witnesses and adverse witnesses. This gentleman was both adverse witnesses and the setup for the examination occurred in the deposition. You understood what his temperament was, you understood what the trigger was, and then you went in and used the trigger to have him diminish his credibility in front of the jury and ultimately discredit him and discredit the defense In a very sweet way. In a sweet way, and yet no, that's not taught in law school.

Karen Koehler :

No, but how do you even do that? Like your first question is literally going to be did you tell my staff to F off? Well, I mean, when you do that first of all, rory Lee did not see that coming and didn't object to it. Yeah, but you know it goes to motivation and why you're there. It's completely not irrelevant.

Mo Hamoudi :

No, I think it's totally relevant. It's relevant. He's a combative witness.

Karen Koehler :

I just wanted to get that set that record straight and I did. Yeah, so those are some examples of things that you you cannot prepare for this like people think people over prepare so much in trial and I think that you should prepare like I. It's not that I don't prepare, I prepared, but if you don't give yourself space, you can't see the courtroom.

Mo Hamoudi :

I totally agree.

Karen Koehler :

People, how? Tell me, let's talk about seeing the courtroom, because for me, the most important part about examination is how it lands. It's not how the witness is even doing. They can be doing technically everything perfectly, it's do. These people seem to care.

Mike Todd:

Well, that's the most important thing is what the jury is thinking.

Karen Koehler :

But most people can't see the jury or they're not focusing on the jury. They're wanting to make sure that answers are correct.

Mike Todd:

Yeah, they can't do that yeah.

Mo Hamoudi :

I mean. For me, it's a couple of things. One law school didn't teach me how to move and be in a courtroom or how to examine witnesses.

Karen Koehler :

Let's talk about being and moving in a courtroom, especially in the context of a direct exam I talked a little bit about. My placement is typically fairly close to the witness, not on top of them, but in an intimate setting, like we're having a conversation. You know, I'm having a conversation and you have, and they always say, would you please speak up? Or I have to hold a microphone or something like that, and I don't, I don't care, I'm happy to do either, but you don't ever have to be told to speak up because, you were very loud.

Mo Hamoudi :

Yes.

Karen Koehler :

But talk to us about body voice. Where do you go in the courtroom when you're examining witness?

Mo Hamoudi :

Well, first, I'm a Meisner-trained actor. I was in New York, I was an actor. I was in New York, I was an actor, I was a writer.

Karen Koehler :

So my Wait a minute, meisner is who.

Mo Hamoudi :

Sandy Meisner. He is like Stella Adler, who is a technique of learning how to act, and Meisner training is Show us. It's oh, I can show you.

Karen Koehler :

Okay, wait, who are you going to be?

Mo Hamoudi :

Who are you going to be?

Karen Koehler :

I don't know You're leading this.

Mo Hamoudi :

No, you're leading this. I am you going to be? Who are you?

Karen Koehler :

going to be. I don't know. You're leading this. No, you're leading this. I am. Who should I be?

Mo Hamoudi :

You can be whoever you want. We're doing Meisner right now. That's Meisner.

Mike Todd:

That's what I was going to say. He's already doing it to you, I'm doing it.

Mo Hamoudi :

So the Meisner technique. There's the Adler technique, which is what's called the method acting, which is you tap into an experience that you know well and you call on to that experience from a historical experience could be trauma and you rely on that to be in character. Meisner is about listening, listening to understand, as opposed to listening to want to respond.

Karen Koehler :

Wait, repeat that and explain.

Mo Hamoudi :

Okay, you're listening to the person to understand where they're at and what they're saying, and then, when you understand, then you respond. So in a setting of a courtroom it translates actually really well. It's a technique that I used to practice when I bartended, so I used to work on rolls, and when I'd go to auditions I would just use the technique while I served people drinks. So when I do an examination, Like what?

Karen Koehler :

Can I have a rum and coke?

Mo Hamoudi :

What's your name?

Karen Koehler :

Sally.

Mo Hamoudi :

Sally, where are you from?

Karen Koehler :

Houston.

Mo Hamoudi :

Houston, when did you come to New York City?

Karen Koehler :

When did you come to New York City?

Mo Hamoudi :

I've been here since 2000.

Karen Koehler :

Oh well, I was there since 2005.

Mo Hamoudi :

Do you like New York City?

Karen Koehler :

Yeah, do you, I love it.

Mo Hamoudi :

Why do you like New York City?

Karen Koehler :

Well, because I can meet fun people like you.

Mo Hamoudi :

So what we're just doing is that we're having an intimate conversation and we're building rapport. What juries want, what audiences want, is they want to get inside an intimate relationship. They want to get to know people and you can use this technique to get the jury to know you, because ultimately, you're going to go talk to the jury in closing and they got to trust you. You can talk to them or they can get to know you through watching you have conversation with somebody else, and so my approach is to have a conversation, an intimate conversation, with a witness and let the jury within that conversation Now sometimes these are what I'm talking about are friendly witnesses and, for example, in the Taylor trial, if you go back and watch my examination of Summer's brother, my entire examination was based on this technique, was getting to know him and he getting to know me and the jury getting insight into that.

Mo Hamoudi :

Now, my movements are intentional. You will see me move in a courtroom between questions I ask because I'm creating distance between myself and the jury, coming closer to them. I'm actually trying to create physical intimacy with the jury so that the jury trusts me the closer I get to them and the witness the same way.

Karen Koehler :

He's more calculated than I am.

Mo Hamoudi :

I mean.

Karen Koehler :

I'm very intuitive. I'm just I'm feeling it. I feel it if they like me or don'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 good strength of mine. I can tell when they don't like me and when I'm going to be in trouble.

Mo Hamoudi :

You're talking about. They don't like you. Who's that?

Karen Koehler :

The jury. I'm only talking about the jury. Okay, but so I don't, I don't, I'm not intentional.

Mo Hamoudi :

Well, I guess, as you are, well, I wouldn't say I'm intentional. You just said you were intentional.

Karen Koehler :

I'm saying okay, let me reframe Quote unquote yeah, every movement I make is intentional. End of quote.

Mo Hamoudi :

Okay, fair, but it is. But I can tell you right now that you can't tell that I'm being intentional. No one is able to tell what the hell I'm doing. No one's able to sit back and go oh, that's dumb.

Karen Koehler :

Now I know. Well, now you know he's doing the walk.

Mo Hamoudi :

No one's going to be able to go. Oh, now they all know. Well, yeah, now they know. But the second thing is that you can get people to like you through this process. If they don't like you, you can get them at a minimum to trust what you're saying. It is through the intimacy I am telling you. It's creating intimate moments between a witness and yourself. Now, strategy-wise, what I'll do is, if I interview a witness before they take the stand and let's say they are an adverse witness, I will be very aggressive with them outside of the courtroom, Okay, and then when I come into the courtroom, I flip.

Karen Koehler :

Same, exact Same. That's what I just explained, yeah.

Mo Hamoudi :

Yeah, so that approach it's very effective. It throws the witness off and then they start to just give you things that they would not have otherwise given you, because they just don't want to have a confrontation with you.

Mike Todd:

Okay, here's a question what do you do when you're presented with not a hostile adverse witness, but an experienced expert witness who is good at I guess I would call it manipulating their testimony?

Karen Koehler :

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 bit more preparation involved. We would have taken their deposition, but now I'm on a kick of taking it for no more than an hour and mainly I just want to do the ones that I don't know so I can understand. Like, how am I going to get under their skin? I want to get under their skin real 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 be at staying neutral? Are they going to be staying neutral Like Bill Parton, who I hate so much, who's finally retired, the economist who used to say that this person was worth more dead than they were alive?

Karen Koehler :

Literally, that's horrible. Anyway, he was pretty good at trying to act like he was never bothered, but I could always bother him. But I could always bother him. I could always bother him, and it's similar to what he's saying, like where are their soft, squishy points? But you also want to do it. There's some people that think that they can just take on an expert on every point. That is never good. You have to have what do you want to get out of your cross? What is the one point or two points, maybe three points that you want? You don't want to take them through all their opinions and then refute them Like that is horribly boring. You have to have a real, concrete idea, normally ahead of time, of what those points are.

Mo Hamoudi :

I don't think experts generally make or break a case. I think that what experts when they're put on well?

Karen Koehler :

They do in medical negligence cases.

Mo Hamoudi :

Well, generally, I said yeah, I just said generally speaking. I don't think experts make or break a case. But I think that what I try to do is with my experts. I always tell them you're a teacher, you're not an expert. So if you're educating, the jury's going to like you and connect with you. So what I try to do with the other experts is make sure that they don't look like educators, that they look like something else. And so a good way to confront and impeach an expert is to demonstrate that they're not a good teacher, they've not done all their homework or they're not looking at all the information, and then something as simple as that causes people to be skeptical of people who hold themselves out as experts. A lot of the times what I've seen in the defense experts is that some medical defense experts don't even examine the client. I mean, that's such an easy thing to sort of impeach an expert on.

Karen Koehler :

This could be his whole topic. But one of my favorite things to do with experts and it's very difficult because there's a fine line you don't want to co-sign on that expert, but it's to co-opt. Some people call it hijack the expert, co-opt the expert, which is just figure out how they're going to endorse your case and get a second whack at it. In fact, it's one of my favorite ways to use a defense expert is to verify the points that I need in my case in chief get them to endorse them.

Mo Hamoudi :

That's an approach which is you find out where you agree. You have to be very careful about that. You know it's like so we agree on this.

Mike Todd:

Yeah, that sounds a little dangerous too.

Karen Koehler :

Yeah, but it can be very effective, especially with damages experts, not so much with liability, with liability less so.

Mo Hamoudi :

I mean, when you're talking about economists, like for our clients, somebody's dead you say, well, how much were they going to make in their natural lives? Your expert says 5 million, their expert says 3 million, and they both have an approach and there's not much you can do to say your approach is not as good as mine, or you can do some things. Ultimately, my experience is the jury splits the difference or something along those lines. It's hard to like sell on that, but I think that, like when you're talking about a medical examination or a psychological examination, and you have an expert come in and say here's my psychological opinion. Your client does not suffer from X. I go well, have you examined them? Have you spent time with them? And they go no, I looked at the records. And then you say that's an easy one with the jury. You go. Could you imagine somebody giving you an opinion, a medical opinion, without even having a visit with you and just reading your records and saying this is what's happening with you. That's an easy one.

Karen Koehler :

There's normally a direct relationship between if a jury is going to go with you and have you win the case and which side of the economics they give you. They don't often split the baby Sometimes they will but normally if you're going to get a plaintiff verdict they're going to go with the plaintiff economist and if you're going to get a bad verdict or lesser verdict they're going to go with the other economists. In general there's some weird things about economists. Economist testimony, anyway, is a weird thing. We could talk about that separately.

Mike Todd:

Yeah, sorry to derail you with experts, no problem.

Karen Koehler :

Yeah, but you know, let's talk just really quickly. You know, some of the best testimony in the world is lay witness testimony and that's family, friends, coworkers, people from community, church work. Those people are so good because the more they testify, the less the plaintiff has to testify. So if there's one lesson to take away from here is people put on the plaintiff has to testify you really. So if there's one lesson to take away from here is people put on the plaintiff for way too long yeah, way too long. Sweet spot 25 to 35 minutes or less. Sweet spot when you have everyone else doing it. Then the plaintiff doesn't have to do it. And who wants to, you know asking? You're basically asking them to prove your own case.

Karen Koehler :

So I want to talk just a little bit about plaintiff. So I talked to you about lists. I'm super against lists because people it creates anxiety for the witness, especially a plaintiff. They got this list, they got to remember all these rules and then they got to memorize a script and then you know you put so much on them and the way that I prep a plaintiff witness is completely different. I say I'm oprah and you're my guest. Or I say I'm your neighbor and we're going to be catching up. That's the tone that we have here.

Karen Koehler :

I'm going to ask questions and you'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 good questions. Yeah, and when I teach this I tell lawyers who complain about well, you know, the plaintiff did a bad job. You did a bad job, it's your fault. If you'd asked the right questions in the right way, then the plaintiff would have done a good job. So when I've had plaintiffs that haven't done a good job and there have been some I take responsibility for that. Like, yeah, that did not go well. And I've had some where they weren't prepped enough. Normally I prep quite a bit, do them by videotape, have multiple meetings, we've already been together the whole case. Um, you know they have an idea of how to do it, but I don't want to script it and I don't want to overwhelm them and I certainly don't want them to be so tired by the time that it comes that they just talk rote.

Mo Hamoudi :

Yeah.

Karen Koehler :

And then there's two types of plaintiffs witnesses general, there's the stoic, and then there's the one that is the opposite of stoic, that can describe exactly how burning and stabbing that pain is, with the exact amount of frequency, that has an encyclopedic knowledge of every indignation that they have, indignity that they have experienced or loss that they've had. And they could go on for days. The juries will always like the stoical. They will always, and so if you're using lay witnesses, it's fine, because they're testifying for that guy or guy. Meaning guy or guy for me is like gender neutral. That's what a jury connects with, because they're not sitting there trying to prove their case or whining in jury's terminology. The other witness is way more difficult and with that witness I want them on as short as possible.

Mo Hamoudi :

And with lay witnesses, what they end up doing is they become what I call you're not allowed to put on character testimony. But lay witnesses provide context to client character because they describe them in day-to-day life and because the jury feels a lot of the times that your client has been prepped. Yeah, and so you're absolutely right that lay people are essential People who see them, that they do the same things as ordinary people and experiences. I think that that's.

Karen Koehler :

But you're not quite there. What I like about the lay witnesses isn't just the data. I don't like the data. The data to me doesn't mean anything. What they're getting from those lay witnesses. You can tell when a lay witness loves the person or cares about them, or I always ask them to tell us stories. I don't want to hear like they could do this and now they can't do this. I want it all in story version. Once we went and did this and then this happened and da-da-da-da-da. I want the story. I only want stories. But there's a warmth, there's a love, there's that emotional connection that that lay witness has with the plaintiff that it's more than character. It's like illustrating that the person is—everything comes back to love Mo. The person is loved. Yes, everything comes back to love Mo.

Karen Koehler :

The person is loved. You call it human connection, but I call it. It's that deeper thing, it's the love for that person.

Mike Todd:

Don't you also think, though, that people respond more when they're hearing it not from the witness, like you said, but from their friend, like I mean, 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 get it from who you think, like you said, you think they're prepared, or you think they're lying, or you think they don't remember correctly, or or whatever, but if you get it from somebody else, even if it's exactly the same thing.

Karen Koehler :

You're going to believe that a little bit more. And jurors want to make the right decisions, yeah, and so they don't want to be misled or have someone exaggerate something. So the more that you have these touch points for them, the more comfortable they come of who this person is.

Mo Hamoudi :

I agree with that. I agree with that.

Karen Koehler :

Okay, but we need something exciting to end this.

Mo Hamoudi :

I think what we can end with exciting is that about witness examination.

Karen Koehler :

Well, that's what we're talking about.

Mo Hamoudi :

I think the exciting thing is I've had a witness lie and I've caught him in a lie.

Karen Koehler :

Yeah.

Mo Hamoudi :

Your witness or defense's. It was an adverse witness and I caught him in a lie. Yeah, your witness or defense, it was an adverse witness and I caught him in a lie and it was a bad lie. And then I was graceful in outing the lie and the jury liked that more. Because the jury knew that the witness lied and because I was graceful it worked much more to my advantage than had I been more like you're a liar. So sometimes I think, like doing the obvious, you shouldn't do it.

Karen Koehler :

And this is when I get irritated and jealous listening to someone like Mo talk about this, because it's so much harder for a female trial lawyer to do a lot of this stuff.

Mo Hamoudi :

Can you tell me more? I'm interested in that.

Karen Koehler :

Yeah, for example, I've had many witnesses lie and I've caught them with the lies and sometimes I become aggressive and then later the jury says you guys, you were too aggressive. They don't like that, you know. You have to be very careful when you're a female trial attorney with your emotions. I've had them also say the opposite. Why weren't you harder on that person? You should have been harder on that too soft.

Karen Koehler :

And so, for a female trial attorney, you are constantly navigating and having to be very conscientious how you do things. Conscientious how you do things. I have come to the realization which is probably a good realization anyway that for me what works is and you've probably heard me say this I need permission from the jury before I will become anything other than kind. I need to feel the jury saying okay, that ticked us off. We think that guy's lying, you should go.

Mo Hamoudi :

How do you do that? How do you know you have permission?

Karen Koehler :

Just intuition I have to pay attention and you can tell they start going like this. They start crossing their arms. Some of them will be shaking their head. You should see how many people shake their heads. It's not hard to see it. And then you can go, especially if you start feeling them losing their temper yeah then you?

Karen Koehler :

then you have to make the decision. Do I just not lose my temper? Well, obviously you're not going to lose your temper. But am I going to go after this or 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 stuff that you do in between there. But I am very much tuned into the jury.

Mo Hamoudi :

So I think that would be a good topic next time. I really want to explore more the gender dynamics of trying a case. I think that would be a good one.

Karen Koehler :

I want to talk about the trial. Let me count the ways.

Mo Hamoudi :

Yeah, yeah, that was a good.

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