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Take on the Resistance

By Chris Stombaugh, Co-Chair of PowerDepo

Trial lawyers are facing many challenges, but the most difficult is resistance. Not simply the run of the mill, garden-variety resistance. This is the “I don’t like or trust you guys or what you stand for” hyper-resistance.  We are well into the age of “alternative facts” and “fake news.”  And this resistance is in every aspect of the practice – from discovery through trial.  If we thought we were not getting the results we need in our depositions in the past, it’s getting much worse.

To get different results, we must actually be different. Think about it as the difference between asking structured questions in a job interview versus asking questions out of curiosity with an acquaintance or even a friend. The difference in the quality of the conversation is profound.

We start with the premise that behavior is based on feelings. To influence a person’s behavior we must influence how they feel. This is done primarily through our own mood and attitude. The more we can exit and enter a mood and attitude on demand the more influential we will be. The best way to do this is through our assuming a physical posture consistent with the mood or emotion. This allows you to transfer that state to another person. The term for this is “emotional contagion.”

Being able to control our mood also empowers our use of language. The more that we can connect emotionally, and with our language, then the less resistance there will be and the more they are inclined to respond in a way that’s conducive to our outcome. All of this is based on feelings.

Once you have the right mood or “state” your basic intent should always be focused on the “well being” of the human beings you are speaking with. Taking control of your mood and choosing a helpful one for the task is of overwhelming importance. By keeping this intent in mind, it helps us keep up the conversational flow, whether we are speaking with deponents.

It is in the flow of this connection where tremendous revelatory information can be extracted organically. A key ingredient to deep connection is that it is more focused on our active listening and receiving information than our input.

While you can still use a checklist and outline for questioning a witness, if our responsive questions flow naturally and organically from their response as if in a real time conversation, then there are no artificial breaks typical of the structured questions that take us out of flow.

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