Witness familiarization and how to combat the dark arts of cross examination
We had the pleasure to speak with Tom Nevin of Loquitur (https://loquitur.com.au/) a few weeks ago about the dark arts of what trial lawyers have to do, and how by providing training to witnesses, Loquitur helps trial lawyers achieve better results for their clients.
To give a little context to why we had this conversation – although Syntheia is primarily focused on distilling and applying legal knowledge from text data, we make an effort to think beyond words appearing on a page or a screen. Experts like Tom shine a light on what lawyers do in practice, and helps us identify where legal knowledge can be applied to improve outcomes for lawyers and their clients. Our unscripted conversation with Tom looked at the work Loquitur is doing by introducing their “witness familiarization” services in Australia.
This blog post is a triple-threat of intrigue:
we explore witness familiarization and what it has to do with lawyers – more specifically, how does the service helps witnesses give evidence in a more effective manner, so that courts have better information
we explore how an innovative service like Loquitur can be introduced to a historically conservative market
we explore why technology is not always the answer to helping lawyers be better lawyers
A few of the topics that Tom and I cover in our conversation are:
what do litigation lawyers do
what is “witness familiarization”
why giving the best evidence to court is important for society
how to familiarize witnesses for court proceedings while staying safely inside strict legal ethics rules
what is involved in the training Loquitur and barristers give to witnesses in order to prepare them for cross-examination
what skills do lawyers need in order to teach witnesses to overcome the stresses of a real trial
how a service like Loquitur plans to introduce an innovative process into a conservative profession like law
what technologies can improve the services Loquitur offers
some practical advice to use simple and existing technologies, like video recording, to enhance how legal services are provided
a pontification of using sci-fi technology, like computer vision, to help witnesses recognize reactions
You can watch the video of our conversation here:
Transcript of conversation
(Note: transcript is automatically generated, and may contain misspellings and typographical errors)
00:00
welcome to another casual unscripted
00:02
conversation
00:03
did we have a special guest with us tom
00:04
nevin who is starting a company in
00:06
australia called
00:07
loquita which is a witness
00:09
familiarization company
00:11
tom welcome to this conversation
00:14
horace hello great to see you how are
00:17
you oh hello
00:18
doing very well we're going to jump into
00:20
a few questions
00:22
because i know so little about
00:23
litigation and so little about this
00:25
dispute resolution that you're going to
00:28
have to guide me through a lot of what
00:30
we're talking about today
00:32
my pleasure mate let's jump right in hey
00:35
so so the blog is about two topics the
00:38
blog is about
00:39
um if you think of it as like a venn
00:42
diagram one circle
00:43
is what does technology do in any
00:46
context what does technology do
00:48
and the second part of the venn diagram
00:50
is how do lawyers become better lawyers
00:53
and i thought with locker what would be
00:55
really cool
00:56
is we kind of talk about well what's the
00:58
objective here how do we help litigation
01:01
lawyers be better litigation lawyers
01:04
um and then maybe then we can bring in a
01:07
tech angle of well
01:09
what are the sorts of possible things
01:10
that we can do
01:12
but fundamentally it's about
01:15
well making your lawyers look good
01:17
winning cases
01:19
yeah i suppose it is at and it's sort of
01:22
as barest bones
01:25
there to help lawyers uh
01:29
get better results for their clients and
01:30
i suppose more
01:32
directly we help their their clients and
01:35
and in particular
01:36
the witnesses that are going to give
01:37
evidence in in a way such that they're
01:40
able to deliver their evidence more
01:41
effectively
01:42
in court and thus perhaps for for
01:45
lawyers to win more cases in court or
01:47
various other forums as they may be
01:51
arbitrations investigations and
01:54
so on and so forth um but i suppose
01:58
leaving aside the benefits for clients
02:00
and lawyers um
02:01
in that regard i suppose there's
02:03
probably a more benevolent overreaching
02:06
purpose for this whole thing which is to
02:09
you know have the courts get better
02:12
evidence
02:13
because the person who's giving the
02:15
evidence
02:17
will hopefully be less flustered
02:21
and less scared and less nervous as a
02:23
result of having been
02:25
even more thoroughly prepared for the
02:28
very stressful very taxing very
02:30
difficult
02:32
process of giving evidence under and
02:36
that's
02:36
kind of what one of the big benefits
02:38
which i don't think is perhaps
02:40
perhaps overlooked by a lot of people in
02:42
the commercial side of things
02:44
uh there's a there's a much greater
02:46
benefit and i think also
02:49
there's a big benefit to society and
02:51
that
02:52
it does demystify the law in a way it
02:55
democratizes it people understand
02:57
a bit more what goes on in court and it
03:00
just provides that little bit more
03:02
openness
03:03
to people and to the public and then i
03:05
suppose also
03:06
with that people trust the system more
03:09
trust
03:10
in the judiciary and so on and so forth
03:12
so
03:14
that's rather a long way of saying that
03:15
we we try and help lawyers win cases but
03:17
we do
03:18
various other things in relation to that
03:21
and it all i think stems
03:23
back to we help people
03:26
help witnesses deliver their evidence
03:29
more effectively in court
03:31
that is a really cool way of framing it
03:33
um and i love the
03:35
kind of public good angle because it's
03:37
not something that
03:39
is talked about very often i think a lot
03:41
of times lawyers
03:42
think it but they don't necessarily put
03:44
at the forefront of going well this is
03:45
my mission statement this is what we're
03:46
trying to achieve
03:48
and so i think that's super cool um what
03:50
sort of
03:51
prep work do you do for witnesses to
03:54
help them overcome this anxiety and fear
03:57
the aquatur is an independent
03:59
third-party
04:00
training organization and we provide
04:03
what's called witness familiarization
04:06
so this complements the the prep
04:11
that the legal team will do up in
04:13
advance of the hearing
04:15
the legal team does everything in
04:16
relation to the evidence itself
04:19
we help the evidence delivery
04:22
and what we basically do is we have
04:26
one of our barrister trainers so we we
04:29
get a barrister to go in
04:31
sits down one on one with the witness
04:34
and goes briefly through that this is
04:38
what's going to happen in the court and
04:39
so on and so forth
04:41
but we then go through in quite a lot of
04:44
detail over the course of
04:46
several hours what
04:50
types of questions and that
04:53
cross-examiners ask
04:56
generally to try and sort of get where
04:59
they want to go what's their strategy
05:01
what's their tactic
05:02
how do they do it what traps do they
05:06
set for people who are being
05:08
cross-examined
05:09
you know do they sort of ask a series of
05:11
questions where you say yes and you say
05:13
yes and you say yes
05:14
and you say yes then they ask a question
05:16
to which you say yes without really
05:17
thinking about it
05:19
whereas if you'd stopped and thought
05:21
about that answer you might have said
05:23
well no so it takes
05:26
that's just one example but it takes you
05:28
sort of through
05:30
uh the black arts of cross-examination
05:34
by barristers
05:36
and and explains to people you know what
05:39
they're doing
05:40
how they do it obviously all in a in a
05:43
general
05:44
sense we don't know anything about the
05:45
evidence the barrister is independent
05:47
we're independent
05:48
um but then it also the barista will
05:51
explain
05:52
how to recognize firstly that that is
05:55
happening
05:56
and then i think most importantly
05:59
secondly how to actually answer those
06:01
questions
06:02
in in such a way they say a barrister
06:03
will often ask a closed question
06:05
which is based on a um
06:10
on a premise and by responding to that
06:14
you inevitably accept the premise on
06:16
which it is based
06:18
yep so you know
06:21
we teach witnesses to to recognize when
06:24
a closed question is asked often which
06:26
most of the time it will be and then to
06:28
counter the premise on which it's based
06:30
before giving your actual response
06:34
and so you might say well that's
06:37
actually not quite correct
06:39
this is actually the case so you're not
06:41
going to accept the premise you're sort
06:42
of
06:44
explaining what your actual evidence is
06:47
or you're explaining what the actual
06:48
situation was
06:49
um and without being sort of herded in
06:52
the way that the barrister
06:54
[Laughter]
06:56
wants you to go so
06:59
there's that that's very important that
07:00
practical element which is a theoretical
07:02
element's very important and then
07:04
what we do which is quite important and
07:06
very um
07:08
i think necessary a lot of the time is
07:10
it's the practical application of those
07:12
things that we
07:13
teach in the sort of theoretical part of
07:16
the course is
07:17
the witness is given a mock set of facts
07:20
generic
07:20
general set of facts unrelated to the
07:23
underlying
07:24
um case and they're given a mock
07:27
cross-examination
07:28
by that barrister on that set of facts
07:31
and
07:33
they can choose to be this witness or
07:35
that witness and they give their
07:37
evidence according to a
07:38
sort of set of facts that they're given
07:41
and read in advance
07:42
and they're cross-examined and in doing
07:45
that
07:46
they'll be asked questions i'll be asked
07:48
um
07:49
you know they'll be trolled the
07:51
barrister will try to lead them down
07:52
that sort of merry little path
07:54
and they then have to try and implement
07:56
those strategies that we've previously
07:58
said
07:59
to try and give their evidence rather
08:02
than
08:04
be taken in that direction and it could
08:06
be little things like okay
08:09
pause and take a breath before you
08:12
respond to any question
08:14
and we teach that in the course we say
08:16
yeah before you answer any question
08:17
pause and take a breath and that stops
08:20
the barrister getting into a routine and
08:23
asking the questions and having a quick
08:24
back and forth by pausing
08:27
and having a breath you give yourself an
08:29
extra second
08:31
so little things like that and then
08:33
obviously there's a there's a lot more
08:35
things
08:36
and then um so that might the crosses
08:40
the mock cross examination might go for
08:41
20 minutes
08:42
uh and then that's videotaped at the
08:45
time there's an ipad in the room
08:47
and then they watch it back and then
08:50
see here that was really good you paused
08:53
took a breath and then responded here
08:55
you got flustered
08:57
you know when you get flustered what you
08:58
should do is pause
09:00
take your breath refer to your statement
09:02
if they've asked you about your
09:03
statement
09:04
um you know so on and so forth you've
09:07
used i've set a trap for you here
09:09
you saw my trap and you responded
09:11
sensibly to it
09:12
or you didn't see my trap and i trapped
09:15
you
09:16
and then you'll repeat that process a
09:19
couple of times
09:21
on on the facts the mock facts as they
09:23
are
09:24
and that practicality that that
09:27
practicing of the strategies
09:30
is quite beneficial uh to to the
09:33
witnesses
09:34
and i think that's basically how we
09:38
try and
09:41
help witnesses get better evidence by
09:45
putting them through a bit of stress now
09:47
such that the actual
09:48
cross-examination while it will be
09:49
stressful they know what to
09:51
expect and they're armed with some some
09:54
tools and some
09:55
tricks of their own to actually go in
09:57
there and make it
09:58
a slightly more level playing field so
10:00
to speak
10:02
tom you mentioned the dark arts of the
10:05
black arts of
10:06
litigation and i haven't i haven't heard
10:09
it called that before i don't know if
10:11
it's like
10:11
common parliaments against amongst
10:14
litigators
10:15
um and you know so much of what lawyers
10:18
do
10:19
is this kind of unspoken implicit
10:22
set of skills right these soft skills
10:25
that that lawyers
10:27
learn from a lot of experience how do
10:30
you
10:31
teach that to someone how how do lawyers
10:33
get
10:34
better at that and therefore how do you
10:38
counteract that by by teaching
10:41
these witnesses those exact sort of
10:44
behaviors
10:45
like i imagine it's quite difficult to
10:48
first
10:48
gain that implicit knowledge and then
10:50
second teach someone
10:52
to counter that implicit knowledge i
10:55
mean a lot of our barristers
10:57
we choose them very carefully firstly
10:59
they're actually personable and they're
11:01
people
11:02
people person so to speak so they're
11:04
quite good with people they can relate
11:06
to clients
11:07
they're a bit hands-on they're willing
11:08
to sort of like explain things a couple
11:10
of times to a client if they're
11:12
nervous or whatever else or um sometimes
11:14
to be fair you get really
11:16
oh the witness is a bit arrogant they
11:18
don't really care they're not reaching
11:19
attention
11:20
and you have to break them down a couple
11:22
of times to build them back up
11:24
but a lot of our barristers and we
11:27
have taught the advocacy course
11:30
and teach the advocacy course in in
11:32
various universities as well as having a
11:33
commercial or
11:35
whatever it is practice itself so
11:40
they're used to teaching those tricks
11:43
to to people who want to become
11:45
barristers or lawyers i suppose more
11:48
generally
11:49
and they then also
11:52
have to teach it to to to witnesses and
11:56
i suppose
11:57
that's just part of the art of being a
11:58
good teacher is being able to teach it
12:00
not to someone necessarily who
12:02
wants to specialize in it but someone
12:04
who
12:05
has been sort of has come at it from a
12:08
totally different way and is no i'm
12:09
saying
12:10
they're not dragged there but they
12:12
aren't they're necessarily
12:15
relishing the thought of being there um
12:18
as to how the barristers do it um
12:22
that's just a skill that a good teacher
12:24
will have
12:25
i think using examples using a few war
12:27
stories is always important
12:29
um relating to them you know there was
12:32
this one time when i was
12:33
cross-examining someone and i said this
12:35
and i said that i said that and then
12:36
by using that personal example
12:40
um i think that then and that allows the
12:44
the witness to relate to that and
12:46
perhaps think well that's something that
12:47
i probably would do i won't do that one
12:50
and so on and so forth so i think
12:52
there's a there's a few things that
12:54
they do um i'm not a barrister
12:58
and unfortunately i'm not i'm not as
13:01
well versed in the dark arts as they are
13:03
uh but yeah look they've got a they've
13:06
got a box of tricks and uh
13:07
and they use it and i suppose in a way
13:10
um
13:10
yeah we're we're opening that that box
13:13
of tricks up a bit and
13:14
putting a bit more of a lay down with
13:16
there to help to help the other people
13:18
to help the witnesses
13:20
just give their evidence in a slightly
13:22
better way
13:23
so five-year plan what do you think
13:26
well what would you like to happen
13:28
within five years
13:30
i think the first thing that has to
13:31
happen is
13:34
the acceptance of witness
13:37
familiarization
13:38
in australia and that will take time um
13:42
hopefully it'll take less than five
13:43
years i expect it will
13:45
take a lot less than five years i mean
13:47
people are
13:49
generally open to the idea made more so
13:53
more mainstay by the fact that it exists
13:55
in the uk i think is very important
13:57
but they also see it as a valuable tool
14:00
and a lot of use and a lot of benefit
14:02
coming out of it
14:03
so firstly i think yeah becoming
14:06
um a commonplace accepted practice and i
14:09
think
14:10
um i think that's probably the main
14:13
thing
14:15
and then i i expect
14:18
there may well be and this is perhaps
14:19
more on the expert side of things rather
14:21
than
14:21
on the uh delay side of things
14:25
um perhaps a more formalized or
14:28
standardized
14:32
method or methodology of teaching
14:36
witnesses expert witnesses how they can
14:39
give better evidence and perhaps
14:41
including that as part of their cpds and
14:44
so on and so forth i mean it exists
14:46
already but it's a bit ad hoc
14:48
it's a bit um
14:49
[Music]
14:51
uh yeah it's more ad hoc at the moment
14:53
and it's not um
14:56
it's not done in such a sort of um
14:58
there's no sort of global certification
15:00
i don't necessarily think that global
15:01
certification is a good idea
15:03
um because inevitably there'll be
15:04
witnesses
15:06
expert witnesses who come in to give
15:08
evidence who aren't necessarily going to
15:10
be certified um because they might only
15:12
give evidence
15:14
once in a blue moon on a very very point
15:16
but i think that
15:18
the expert field will probably go that
15:21
way and there will be degrees of
15:22
certification
15:23
and that maybe is a bit more than five
15:26
years but it's certainly something that
15:28
i see happening
15:29
and we'd be we're looking to get
15:32
involved in that as well
15:33
uh in due course um
15:37
the hill that i have the hurdle that i
15:38
have to overcome um
15:40
with and i think that it's a hurdle a
15:42
lot of people have to overcome is when
15:43
you're introducing a
15:45
a genuinely new concept yeah you do get
15:48
a bit of
15:49
and you know yourself i mean you get a
15:50
lot of
15:52
a bit of skepticism not a lot but a bit
15:54
of skepticism a bit of
15:56
what is that and it's just that changing
15:58
people's mindsets
15:59
and that um you know that can certainly
16:02
helping that by you know
16:03
making it more accessible and you know
16:05
for a video up online for example and
16:07
that sort of
16:08
yeah this actually a it's not bad but b
16:11
is actually quite good
16:12
yeah and getting it out there i suppose
16:14
is quite helpful but it's just that sort
16:16
of change in the
16:18
mindset of bringing in innovation a very
16:21
new innovation
16:22
into it into a new market especially
16:24
especially one as
16:26
as a big conservative will say as the
16:28
legal market
16:29
as well you're very generous in
16:31
describing it as a conservative market
16:35
i think the transformation journey for
16:37
any lawyer is
16:38
tough because they've been doing the
16:40
same thing especially the more
16:41
experienced and older lawyers
16:43
they've been doing the same thing over
16:44
and over again for
16:46
however many decades at least if you do
16:49
get the sort of the skepticism
16:51
at least you know you're on novel and
16:53
innovative concept i suppose so that's
16:54
the silver lining to it
16:56
i love your optimism and i think that's
16:58
that's right like when people go i don't
16:59
get it that's when you know aha i've got
17:01
something brand new and novel
17:04
exactly yeah um i love that
17:07
the base of all of this is about giving
17:09
better evidence so that
17:10
courts have better information well in
17:13
fact
17:14
one question i had for you uh horace
17:16
actually was
17:18
knowing a bit about about lockwood and
17:20
and the way that you
17:21
you know see it operating and the
17:23
benefits you see to it
17:25
how do you think that tech could help
17:28
us oh okay this is a this is a tough
17:32
question and thank you for the role
17:33
reversal
17:34
um sorry to put you on the spot
17:38
i think people people often ask the
17:42
question
17:43
how does tech help and and i think the
17:45
right question to ask is
17:47
probably what are the problems we're
17:49
trying to solve
17:50
and then therefore can tech apply
17:53
and it's a it's a slight different order
17:56
in thinking about
17:57
where tech fits um and from
18:00
my i would say relatively superficial
18:03
understanding of what you do and what
18:05
makita is aiming to achieve
18:07
the the key objectives you want is
18:11
for witnesses to give the best possible
18:14
evidence the clearest possible evidence
18:17
that avoids confusion
18:19
and a lot of that comes down to human
18:21
behavior
18:23
this requires people to have repetition
18:26
familiarity and preparedness and i think
18:30
what tech is really good at doing is
18:34
repeating things it's good at repeating
18:36
things to a single person
18:38
over and over again it's good at
18:41
repeating things
18:42
from one case to the next case so that
18:46
training that was given in the past can
18:49
be
18:49
used as a sort of springboard for the
18:52
next set of training
18:53
to say hey look at how this person has
18:55
done and therefore be careful of that
18:58
i think the expertise that
19:02
barristers have in giving these sorts of
19:05
things and noticing the sorts of
19:08
of signals and
19:11
warnings and pitfalls that
19:14
is something tech can enable um we're
19:17
going to talk
19:18
advanced tech for a minute there is a
19:21
lot of there's a lot of good work
19:23
happening with facial recognition
19:25
um with voice recognition with the sorts
19:29
of things
19:29
that 10 years ago would be impossible
19:32
for for computers to do
19:34
and these days we can put a witness in
19:38
front of a camera
19:39
um and you can kind of see the emotions
19:42
being highlighted on their facial
19:44
expressions and
19:45
you can see when they're stressed you
19:47
can see
19:48
from the tone of their voice well what
19:50
might happen next
19:52
and these sorts of signals um and i'll
19:54
send you a link to
19:55
this sort of stuff afterwards yeah that
19:58
a computer vision can just read and go
20:01
oh there's your there's your warning
20:02
flag be careful of that
20:05
allows you to have these sort of um
20:07
almost
20:08
premonition into the future of what
20:10
could happen
20:12
um so that's like super advanced tech
20:14
but it's
20:15
it's happening today it's been used
20:17
today to recognize
20:18
emotions so what you spoke about earlier
20:22
of stress and anxiety you can see it in
20:24
the witness
20:25
as it's occurring you can see when
20:27
they're getting flustered
20:29
so you know futuristic
20:33
futuristic kind of projection
20:36
you can give a witness an aqua eye watch
20:39
um and record their reaction and when
20:42
they're getting stressed maybe the apple
20:44
eyebrows can buzz a little bit
20:45
to remind them take the pause just just
20:48
two seconds
20:49
think about what you're doing um and i
20:52
don't know if that's allowed
20:53
from an ethical perspective well i mean
20:58
i think that that may be getting a
21:01
little bit
21:03
sci-fi yeah um
21:06
depending i mean also obviously it has
21:08
to be done on very
21:09
um removed and hypothetical sets of
21:11
facts
21:12
um i mean look we could strap the the
21:15
poor witness into a polygraph test and
21:17
uh
21:19
they watched a needle
21:23
that would make them extra nervous and
21:25
put a bit of extra stress on them
21:27
um and i think i heard some crazy
21:29
psychological experiment where they had
21:30
to sort of
21:31
if they the polygraph test thought that
21:34
they were lying it would give them a
21:35
small jolt of electricity
21:38
and really put them through their paces
21:40
i think that might be going a little bit
21:42
too far
21:43
for what we do but i mean i think that
21:46
certainly
21:46
perhaps something that you mentioned
21:48
before about how
21:51
you know if you've educated someone
21:53
chances are other people can learn from
21:55
that same sort of thing and i mean
21:56
even just something as simple as
21:58
videotaping one of these sessions and
21:59
providing it
22:00
as a training as part of our training
22:04
to say you know here i'll get the ipad
22:07
here
22:07
whip it up here is an example of um me
22:12
doing a similar line of
22:12
cross-examination with someone
22:14
and you can see what i'm doing with this
22:17
person here i'm doing
22:18
x i'm doing y here you can see i'm
22:20
leading them up the path
22:22
i'm setting the trap i'm setting the
22:23
trap they wait for wait for it bang he's
22:25
fallen into the trap
22:27
yep so on and so forth although having
22:29
said that
22:30
by getting the videotape and watching it
22:32
back through with the actual witness
22:34
itself
22:35
on the mock cross-examination that had
22:38
the same effect and i think it's
22:40
even more punchy and even hits home a
22:42
lot harder because it is that individual
22:45
there
22:47
in the camera and and they can take it
22:50
away and watch it if they really want to
22:54
it's it's like it's what you've just
22:56
said essentially points out
22:58
a really important um a really important
23:01
feature of technology
23:02
which is you don't need high tech
23:06
to achieve a good result um you need the
23:08
right technology applied at the right
23:11
point in time
23:12
and a lot of legal tech and or
23:15
technology companies
23:17
have a pitfall that they have to watch
23:20
out for which is
23:22
don't build something as a solution
23:25
looking for a problem
23:27
find a problem first and then go well
23:30
how do we solve it what are the
23:32
what are the actions today what can we
23:34
improve about these actions
23:36
and so once you map out the user journey
23:39
of well what do we do today for
23:42
witnesses and how do we get them
23:44
familiarized okay
23:46
now where the points where we can really
23:48
improve the efficiencies
23:50
and i think with the video and i mean
23:51
you make a good point it's a
23:53
it's an older technology just used in
23:54
the right way
23:56
um tom i am going to say thank you so
23:59
much for
24:00
your time and for taking me through this
24:03
kind of
24:04
wondrous black arts of of litigation
24:07
and and what witnesses have to do when
24:09
they go to court because i know
24:10
nothing about that absolutely it's great
24:12
to chat to you uh
24:13
about this and indeed it's a great
24:15
pleasure to chat you always
24:17
um hopefully you'll never have to go to
24:19
court but if you ever do
24:22
i'll ring you first give me a call and
24:25
we'll give you a very special grilling
24:26
by one of our best parents
24:29
that does not sound like fun but okay
