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:

1. 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

2. we explore how an innovative service like Loquitur can be introduced to a historically conservative market

3. 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