I’ve got two INCREDIBLE voices joining me: Coach Jody (a.k.a Jody F’ing Moore 😄) and our newest chief collaborator, Coach Marlo Arnold!
Together, we’re tackling a topic so many attorneys struggle with: prepping expert witnesses for trial.
Some key points we hit:
🔑 Finding the Balance: Jody and Marlo dig into what happens when we underprepare OR overprepare our experts — and why a middle ground is where the magic happens.
🔑 Forget the Script: We’re all about genuine conversations. Scripting your expert to the point they sound robotic? It’s not helping anyone.
🔑 Mindset Matters: We break down why mindset is key, and how SCARF principles can help experts keep calm, stay confident, and connect with the jury.
Whether you’re preparing for a major trial or just want to brush up on best practices, this episode’s got you covered.
Xo,
Sari
➡️FREE FB GROUP FOR PLAINTIFF & CRIMINAL DEFENSE ATTORNEYS
"Your expert isn’t there to be a robot on the stand. They need to be human, for fuck’s sake—calm, connected, and ready to throw down if they have to. That’s how you get the jury to actually trust them."
coach jody
269 TRANSCRIPTION
Sari de la Motte:
Well, welcome, everyone, to another episode of From Hostage to Hero. We have back in the house, Jody Fucking Moore. She's changed her middle name to that. You have, right?
Jody Moore:
I have officially, and she's still in the basement.
Sari de la Motte:
Hopefully, not for long. We're going to hopefully get some office space here in the next new year. But we also have brand new, she's been Coach Marlo in the crew now for the entire year of 2024, but is now our chief collaborator, Marlo, I keep wanting to say Thomas, but it's Marlo Arnold. I mean, forever, I want to say Marlo Thomas every time, and I think that's the only other Marlo I've ever known. How common is that name, Marlo?
Marlo Arnold:
Not very common, although Coach Jody and I were somewhere a few weeks ago, and we checked into the hotel, and someone told me that their mother was also a Marlo.
Sari de la Motte:
Oh, that's right. Yeah, you did say that. So I'm not that weird that I think that's ...
Marlo Arnold:
It's pretty uncommon.
Sari de la Motte:
Yeah. Yeah. So tell us about your new role at H2H in addition to being coach and consultant?
Marlo Arnold:
So I'm so excited to be starting this new role where I am the collaborator in chief here at H2H, so I'm going to be kind of the point person with crew members and people who are thinking about getting into the crew, and coordinating events moving forward. So if anyone has any issues or problems or wants to reach out, feel free to email me at marlo@saridln.com.
Sari de la Motte:
Yes. We are so excited that you are here.
Jody Moore:
Yay.
Marlo Arnold:
And I'm finally on a podcast. I've never been on a podcast before.
Sari de la Motte:
I know. Crazy.
Marlo Arnold:
What's up with that?
Sari de la Motte:
Crazy. Well, before we get going and talking about what we're going to talk about today, we have to talk about the fact that you're both wearing the same jacket in different colors.
Jody Moore:
Yeah. They can't see that though. They're listening.
Sari de la Motte:
They can. No, but if they're watching, this is actually ... and you guys have to watch. That we're telling you all these things because I made the decision, for some unknown reason, to try bright blue eyeshadow for the first time, and then I paired it with light pink. So if you want to see Sari in the '80s, you want to definitely tune into the video part of this podcast. I don't know why I didn't try that before going grocery shopping or on the podcast.
Jody Moore:
I like it. I think it looks good.
Sari de la Motte:
Well, thank you.
Jody Moore:
It goes with your earrings and your glasses.
Sari de la Motte:
Thank you. I'm one of those people that is like, "Oh, I'm wearing blue today. Let's make everything blue," which I don't think is what you're supposed to do, but I did it. So tune in and watch that.
All right, today we are talking about how to unfuck your witness, no, unfuck your witness prep. That's what it is. And Jody came up with that title. She totally did and she's embarrassed. So what we're talking about is witness prep and how so many of our clients and people are doing it wrong. Why? Why Jody and Marlo? Why are they doing it wrong?
Jody Moore:
Well, let me just add a tiny bit of clarity because when you say witness prep, I want to clarify, we're not talking about plaintiffs witness prep. That'll be another episode. We're actually talking about expert witness prep.
So one of the things that we have been asked to do from time to time is can you help us get our expert prepared for their trial testimony? And so Marlo and I had the opportunity to go and work with an expert, and we had all these insights and brainstorms because we were collaborating.
Sari de la Motte:
Yes, yes.
Jody Moore:
And we thought we need to bring this back to the crew. So your question I think was, well, what are we doing and why is it wrong? And so Marlo and I were chatting about it and it's like, "Okay, well how does a lawyer typically approach the expert witness prep?" And one thing I think happens is, "Oh, this expert, they've done this a ton of times. They know what to do." As long as they've got the content down, we're just going to wind them up and let them go. So it's sort of the first thing we're doing wrong is we're doing nothing to actually prepare the expert for how we want them to testify or what role we want them to adopt when they're testifying. Fair enough?
Marlo Arnold:
Absolutely. And then, the second thing I think that people are doing wrong is they're overdoing it. So Jody went over the under-doing it, but also we tend to, we'll script our questions and we'll script the answers for the expert. And so we're over-baking sometimes this expert witness prep by creating a script.
Sari de la Motte:
Why do you think people do that?
Jody Moore:
Why do we think we're scripting?
Sari de la Motte:
Yeah.
Jody Moore:
I think we think we're scripting because, I can tell you from experience, it's really hard when you get to the expert phase of a case because this case has been my baby for a year or 18 months, and I know everything there is to know about it. I've taken the depos. I've gathered the evidence, and I know that I want these 10 points to flow perfectly out of the expert's mouth. They have to have this opinion. They have to back up this opinion. They have to anticipate the challenges.
And so in that respect, I'm going to write out every question and every answer and every topic so that we don't miss something. So again, I think it's sort of that fear base and a lack of trust that I'm actually going to have a conversation with my expert and I'm going to invite the jury into the conversation and we're going to talk a little bit about how to do that. And I'll also note, when I just said that I have 10 points that I want to make with this expert, if you've been listening to the last few podcasts, that's probably too many points to make.
So again, we need to get really clear on what is the role of the expert and what points do we absolutely have to make with this expert and then go into prepping for the trial with those pieces of information in mind. But again, we over-prepare because we're scared that we're going to miss something or because we're attached to the information that we've developed and we want to give that information to the jury.
Sari de la Motte:
What's the danger in over-preparing. I mean, I hear that under-preparing, like, "Well, they know what they're doing, so just let them do their thing," which if my experience is any guide, so many of you're like, "Oh my God, I had this locked and then the expert just took a shit on the stand." I mean, they just couldn't communicate to the jury in a way that made any sense. They were so, especially for experts in general, are so into their expertise that they don't know how to talk to the everyday human. And so that's obviously a problem to under-prepare them because we think, "Oh, they'll just do their thing," which obviously not always is the right thing, but what's the danger in over-preparing them and creating kind of a robot?
Marlo Arnold:
Well, and just to be clear, we're not suggesting that people not prepare. The issue is not practicing. So if we're scripting something out, then if someone's just reciting a script, they're not really connecting with the jury. There's no genuine connection there. The level three is very flat. So the over-preparation can almost be as much or worse of a problem than under-preparing. But we do think that one of the things going wrong here is the lack of practice. So if I just send someone a script via email, I don't have to sit down and practice with them. They have a script. They know exactly what to say.
Sari de la Motte:
It's a time-saving measure in many ways.
Jody Moore:
Yeah, and I also think the script, it hamstrings the attorney and the witness. And so it comes off as either performative or inauthentic-
Sari de la Motte:
Yes. Which is why we don't have people memorize their opening statements.
Jody Moore:
Exactly. And so it's almost like the script can be used as a crutch. Now that I know that I need to make these 10 points in this order with this specific piece of evidence, it does come across as sort of robotic. And one of the problems with being robotic is it's sort of uninteresting. So we're talking about how do we tell a story that's captivating an audience and making them want to listen and a script is not going to accomplish that.
Sari de la Motte:
I was just kind of thinking who would want to listen to an interview, basically? And the best ones are the ones where it's really give and take and it's very, very interactive and it doesn't feel like, "Okay, I've rehearsed my side. Now you say your side. Now I say my side. Now you say your side." That's not how it works.
Jody Moore:
And God forbid you skip something or you skip ahead to a question. It's taking the attorney and the witness out of being present and being grounded, and here are the topics that we want to cover. It reminds me a lot of voir dire. We talk about in voir dire, here are the topics that we want to cover, and we might have a context statement. Well, now we're going to talk about safety while driving, but we have different ways that we might go with that conversation.
But if we've scripted what we think our voir dire is supposed to look like, we might skip a really juicy part of the testimony because that's what came up organically, because that's not in the script or that comes later. So we want to make sure that even when we're working with our experts, that we're understanding the bigger picture and what points or principles we need to hit with this witness. But we're not rigid about how we're going to reach those. At least not in the sense of a script. I think sequencing probably stays somewhat rigid.
Sari de la Motte:
Okay. So you said something about practicing, Marlo. Talk to me about the importance of practicing and how is that different than rehearsing?
Marlo Arnold:
Right. Well, it's just what we were circling back to what we were just saying. When it comes to not following a script. If the expert is practicing and has a list of points that they're working on, then the conversation flows naturally, as opposed to if you're just following a script, then that falls very flat.
Sari de la Motte:
Why need to practice? If we don't have a script, then why practice? Wouldn't it be more fresh and interesting?
Jody Moore:
Right. I think the problem with that is we are missing the opportunity to work with our experts and collaborate with them on their non-verbal communication. So that might be fine for a deposition where you're really just trying to get the words out on the page and hit these points so you can show a judge, "No, this is what they said," if you're opposing a motion or supporting a motion. But in trial, we're really thinking about the conversation with the jury. And so part of that conversation is the non-verbal communication. As we thought about approaching this task of how we would work with an expert using the H2H method, it brought us back to, well, we have the principles of non-verbal communication we have, or of any communication, content delivery, reception and mindset.
And that's the other thing is that I think we skip mindset when we're doing expert witness preparation. And we certainly found that to be true in the experience that we had. So that was a big light bulb moment for us, was part of the practicing, brought out the mindset issues that were underlying what the expert was saying in a way that we had that incongruity and we needed to get the expert sort of aligned with what they were saying from a mindset point of view. So that non-verbally what was being communicated was now passionate and compelling and interesting.
Sari de la Motte:
Because we've talked about many times in the podcast and in the H2H crew about how it doesn't matter how you hold your hands or modulate your voice or any of those things, if you're holding a nonverbal or a mindset problem that's going to come out in your nonverbals, right? So you've got to get your mind right first. So before we talk about the mindset, I think that's so huge. What are some of the things that you guys have noticed with experts in terms of non-verbal communication gone bad? What kinds of things are they doing that we don't want them to do?
Jody Moore:
Well, again, what are we talking about when we're talking about nonverbal communication? I want to be clear that I'm not talking about necessarily they're fidgeting or they're crossing their arms. Those are the more obvious things that I actually think the witness was expecting us to talk about, which we didn't. I mean, we had two minutes of tips and tricks, if you will, at the end, but that was really not the focus of our conversation.
I think the nonverbally, the things that they're doing is they're actually adopting so much neutrality-
Sari de la Motte:
Yes!
Jody Moore:
... that they are forgetting that they actually hold an opinion that they think is right and that they have the receipts to back it up. They have the education, the experience, the qualification. They've reviewed all of the records. They're the most knowledgeable person in the courtroom to support the actual opinion we're asking them to hold, and yet they're conveying nonverbally that this opinion is important and here are the reasons why I'm right. There's a disconnect there. It's under the guise of neutrality.
Marlo Arnold:
Right. I just want to add to that. This is because of where experts come from. Your expert might be a college professor or a scientist, and what they're used to doing with their big brains and all their knowledge is being neutral, convincing other people from a place of neutrality. But it's not always helpful to our jury to have our expert present a menu of options from which the jury can choose. The other side's going to present their option. Our expert's job is to tell the jury what's right.
Sari de la Motte:
Well, and I think this is such ... I'm so glad that we're talking about this because we've noticed this even in opening statements with plaintiffs that we've worked with is like they'll deliver an opening statement. I'm like, "Whose side are you on?" And I know that we've always been ... you all been trained, "We can't advocate in opening," but you were definitely standing on one side, the right side, by the way, and when you come off as so neutral, then it confuses the jury.
And you guys found that this was also true with this witness that you just recently prepped. And so dig into a little bit more. I think there was something from the witness who had said something about the difference between trial and depositions and why they're trying to be neutral when you brought this up with the witness.
Jody Moore:
Right. So there's a couple points I would make. One is, I'm not saying experts shouldn't be neutral. They should start neutral. That is part of the scientific method. But once they've committed to reviewing all the materials and applying their knowledge to actually formulating an opinion, now they need to back up their opinion. So that's one point of clarification I want to make. It is right to start off neutral. I don't know which side of the issue, once I apply my knowledge and expertise and evaluate the evidence, I don't know which side of the issue I'm going to come down on. But then they plant their flag, they take a stand, and we pay them a lot of money to do that. And then to show up and sort of be like, "Hem, haw," and not stand behind it, that's where we get into trouble.
The other point that you asked about was sort of like, well, what's the difference between deposition and trial? I will say that in deposition, the mindset can be different. In deposition, the mindset can be, "I'm going to hit these points, but I'm maybe not going to be as much of an advocate that I would be at the time of trial," because I'm saving a little sort of gas in the tank, if you will. I don't want to give away ...
Sari de la Motte:
Everything.
Jody Moore:
All of it. Right. And I don't necessarily even want to give away the personality that I'm going to have when I deliver it, or I don't necessarily want to give away the analogies, metaphors, stories, vignettes that I might tell in front of a jury, but I'm going to hit my points.
And so I do think that some experts will show up in a deposition differently than they show up at trial. And I think the lesson that I would ask the trial attorney who's working with the expert to understand is you should ask that. You should be asking your expert, "Hey, do you show up differently in deposition and trial? Do you adopt a different mindset or do you take a different approach when you're answering questions in a deposition versus trial?" Because what we don't want to have happen is leave a deposition and think, "Well, that was kind of a dud," or, "He waffled on this or that," and think that's the way they're going to perform at trial, if that was intentional or strategic.
Sari de la Motte:
Well, I think that so often we settle more cases than go to trial. So I'm assuming, I could be wrong about this, that most experts are used to doing depositions, and I think that was true for this one witness that we're talking about, versus trial. And so I think more so than even a question is also telling them, "So this is what we want in deposition, but in trial we want something very different. Are you able to do that? Or I'm going to help you do that, or we're going to hire Jody and Marlo to come help you do that." But I think that they're so used to being in deposition and not giving away the farm, and then they come into trial and it's like, "What was that? I don't even know what side you're on."
Marlo Arnold:
Well, I think because we settle so many cases, it's common that an expert has had a lot of depositions under their belt and maybe they've never been to trial.
Sari de la Motte:
Right, exactly.
Marlo Arnold:
So I've definitely come across experts, this is their first, or this is their second time at trial and they need to be taught, "Look, there's a difference in how you set show up in a deposition versus how you show up in a trial."
Sari de la Motte:
Absolutely.
Marlo Arnold:
Yeah.
Sari de la Motte:
All right, so we've touched on some of these things, but what can they do instead versus under-preparing or over-preparing or not paying attention to? Well, actually let's go to the mindset piece because you guys have brought that up. Talk to me, and I'm going to go to Marlo on this one, since Marlo is heading up our mindset mastery program right now in H2H with Coach Kay. Talk to me about the importance of mindset in an expert witness prep. Because you said that surprised you and I think it would surprise a lot of our listeners to be like, "Really, what does mindset have to do with it?"
Marlo Arnold:
Well, where we really started in this particular expert witness prep was we started with SCARF. We started exactly where your book starts and where our method starts because we really felt like part of the issue we were facing is the expert didn't completely understand where the jury was coming from. So we started out by explaining the SCARF model and basically that the expert, just to narrow down on the part that the expert is in charge of or is most important, and we narrowed down on the fact that this jury needs certainty. And so it's not helpful to the jury if you're expert or just diplomatically offering some different options, because that doesn't give them any certainty.
Sari de la Motte:
They're like, "Great, if a guy from Harvard doesn't even know, then how am I supposed to do it?"
Marlo Arnold:
How are we supposed to know? Yeah.
Sari de la Motte:
And when you're saying SCARF for our new listeners, that's the brain model that says we can either reward or attack the brain based on five factors, status, certainty, autonomy, relatedness, and fairness. And so you're absolutely right that jurors need all of those things, but where the expert comes in is with the certainty piece.
Marlo Arnold:
And it was amazing over a couple of days of working with this particular expert, how often that person came back to the SCARF model and how helpful that was to the expert in understanding that expert's role in trial.
Sari de la Motte:
What do you think experts think that their role is?
Jody Moore:
Yeah, I think that was a fun exploration. I think they generally understand, "I'm a teacher, I've got to teach the jury." But it's interesting because that perspective changes whether it's direct or cross, right? Because cross comes across, I think, a lot more hostile. So it's more like, "Well, I can't give away any points," or, "I don't want to disappoint." They're afraid of disappointing the lawyer or the case. And so one of the things that we really talked about is you can't be a different person on direct and cross.
You might answer questions strategically differently, but we don't want who you are to be different on direct and cross. Because again, a jury will see through that, they'll smell it, they'll be like, "Wait a minute, this guy was all Mr. Nice Guy on the direct, and now all of a sudden he's huffing and puffing and avoiding the questions."
So that was a really important thing, which kind of dovetails to the next point, which is in addition to getting the expert to try to understand, "Okay, well what's my role?" So we asked them, in order to give the jury certainty, how do we do that? Well, you have to basically say, "I'm here to help you, jury, understand all this information that's come out in this trial so you can make the right decision. And so let me walk you through why this is the right decision."
Sari de la Motte:
Well, and I think I was reminded when we were talking about this in debriefing this last one that you all had, it was such a light bulb moment for the witness to be like ... because they think they had to convince. And the minute we go into, and we know this with lay witnesses, the minute we always tell our lay witnesses, "You don't need to convince anyone. You just follow my line of questioning. When you're on cross, just yes, no, be as little as possible. Don't try to help me." That's what we always get in trouble with our lay witnesses, but I think our expert witnesses feel the same way. "I've been hired to convince," and then that makes them go into this really weird place versus, "Your job is here to guide the jury to the logical conclusion."
Jody Moore:
Yes. And in the mindset world, we talked about using the ally. So we talk a lot about having saboteurs and inner wisdom, and then we have allies. So who do we want to call forth to help the experts? So we're like, we happen to be working with someone who was a teacher, a professor, and we're like, "Okay, well let's talk to your professor ally. How would you teach this to a class?"
And so we worked on that, and I'm skipping ahead, but what was super brilliant and a big aha moment was when we talked about cross. It's like, "Well, now what's happening?" It's like, well, is the dean of students coming in and watching you and you're trying to perform in a certain way? Or is it more like someone, like a misguided student? It's like, "Oh, they're trying so hard to understand, but they're just not quite, they didn't quite get it." And that really-
Sari de la Motte:
So let me explain it again.
Jody Moore:
Yes. And that was really resonant for this person. And they were like, "Oh no, it's the misguided student." And we're like, "Right," because no one in that courtroom, including the asshole defense attorney who's asking you a bunch of questions that don't make any sense, right? Because it's the highly specialized field. It's just a misguided student to be like, "Oh, okay, that's not quite right. Let's try this again."
Sari de la Motte:
Good attempt though.
Jody Moore:
Yes. And that turned the whole sort of nonverbal, again, it turned the nonverbal communication over.
Sari de la Motte:
This is it right here. I mean, this is what we're talking about, how to unfuck your expert prep, adding the prep there. Because this is everything. The minute that they get what their role is. And I doubt that many people go, "What do you think your role at a trial is?" Which is what you all do because you're trained mindset coaches when you work with your witnesses. But this changes everything because now they recognize, "Oh, okay, I know more than anybody in this courtroom." And I think we have to remind them of that. And once they were reminded of that, we empower them just like we empower the jury. And now it's, "Okay, I don't have to argue with anybody because I know more than this defense attorney does. I know more than anybody in this room."
Marlo Arnold:
Right. Well, and the safety of the jury. So if you have your expert getting confrontational with the defense counsel, then the jury's like, "Well, hold on. This doesn't feel safe." Or if defense counsel objects to a question and the expert stops breathing on the stand, the jury's like, "Whoa. Oh, right." So we really worked with this expert on teaching this person that you're seen as a leader here, and so you have to breathe for the jury. Even if there's an objection.
Jody Moore:
There's an objection it's almost like ...
Marlo Arnold:
You have to breathe for the jury.
Sari de la Motte:
What did you not understand?
Marlo Arnold:
Absolutely.
Sari de la Motte:
Can I go through that, over that again?
Marlo Arnold:
And sitting patiently while the judge deals with the objection. There's a sidebar sitting patiently and leading the jury and how you deal with that situation.
Jody Moore:
Yeah, it was really fun. It was super fun.
Sari de la Motte:
I love that. Any other tips that we have for expert, unfucking your expert prep?
Jody Moore:
Well, so we have sort of what's the other side of the coin to scripting? And so we actually worked on resonant conversations.
Sari de la Motte:
I love that.
Jody Moore:
And so in order to get there, we went back to ... in the H2H method, we talk about what's on our fears list, which is almost always going to show up as a defense point, which the expert needs to be prepared for. And then what's the ideal belief system or what's the antidote to that? And we mined for principles.
And so what we ended up doing with the expert was, "Well, what are the principles that are underlying your opinions that the juries can understand?" And there was some complexity to the case. And so we ended up working a lot through storytelling. We went through what are the components of trial? You're either teaching, storytelling ...
Sari de la Motte:
Or dealing with resistance.
Jody Moore:
Or dealing with resistance. So the teaching part, I mean, hands down, this person could have read the phone book and I would've learned from it. So that really wasn't the issue, but it was the storytelling. And so Marlo and I just started playing a hot potato where he would say something and we would be, "Something like what?" So you're like, I'm trying to come up with something that doesn't reveal the case or anything, but if you're like, the person was speeding and you're like, "Speeding like what?" A bat out of hell. We're like, "Oh, cool."
Sari de la Motte:
Metaphors, yeah.
Jody Moore:
And so tell us more about that. So as we were trying to come up with the complex principles where Marlo and I are like, "Well, we understand, but we're not sure a jury's going to understand, so explain it to me using a story." And then we came up with stories. And so we actually taught the expert the difference between when you're teaching your nonverbals look like this, now you are going to look at the jury and you are going to breathe well. And we taught the authoritative voice tone. And this is what's really important.
Now it reminds me of with my kid, we went surfing. And so now they're telling a story that illuminates that point. And so we were able to work that through instead of the script, the point that needs to be made in order to support this opinion is X. And that's the principle of why this thing that was done was wrong or why this thing that was done was unfair. And once we understood the principle, and now we can just have a conversation about that principle.
Sari de la Motte:
I love that. And it humanizes them too.
Jody Moore:
Yes.
Sari de la Motte:
And for the jury.
Jody Moore:
Oh, it was so fun.
Marlo Arnold:
Yeah. In that particular case, there were a lot of complicated concepts. And so we really work with that person on coming up with, what's an analogy? What's that like? And it was really fun, actually. We really enjoyed that process.
Sari de la Motte:
So levels of listening is something that you said was important in witness prep, and I think our attorneys are like, "What? What does that mean, levels of listening?"
Jody Moore:
Oh, you're pop quizzing me now. So there's basically three levels of listening. So level one is what's actually being said, the mechanics of the conversation.
Sari de la Motte:
Well, and listening to yourself.
Jody Moore:
Correct. Like inside my head, I'm already thinking of the next question. Level two is actually being present in the conversation.
Sari de la Motte:
The kind of listening we think about when we think about listening.
Jody Moore:
And then level three is sort of what's in the air. And so we did an exercise with the witness where we sort of asked very transactional questions, "Tell me something important in your life." And they picked something and I asked very transactional questions to the point where they were very confused because we had been having rich conversation, and all of a sudden I turned into a little bit of a robot. When was that? And how many times did you do that? And what were you wearing when you did that? What city was that in? And I was very confusing.
And I said, "Tell me that same point again." And they said the same point again. And it's like, "What made you want to do that?" Or, "When that was over, how did it make you feel?" Or, "What would you share about that with somebody who was thinking about doing that?" And we just dropped into this conversation almost you could feel like the breathing got very deep and resonant and there was very intense eye contact. And it was this very beautiful moment. And of course, we sort of broke that moment and said, "That's what resonance feels like."
And so as you're trying to make the points, the bigger points, not the transactional points in your case, but why what happened was wrong. We want to dive into one of these stories or these vignettes in order to try to feel that place of resonance. And once they felt it, we literally were like, "Where do you feel that in your body?" Once they could feel that resonance, it's like that's a mic drop moment in a courtroom. And that's what we're trying to get at. And that's what we mean by advocacy. You're not saying the words, and we must win, and we are right and they are wrong. But you believe so strongly in the opinion that you've formulated that those moments can come up organically in the conversation.
Sari de la Motte:
Well, and they show up when, understanding you correctly, they show up in the level three.
Jody Moore:
Correct.
Sari de la Motte:
So instead, and again, level three, really, you can think about level three as atmosphere. So we can talk about it when we're going to do a trial lab this week, and it's like, "Ooh, just notice what happened in level three right there." The atmosphere changed. Something changed. And so I think what you're saying is so important is that instead of hitting them over the head with something that when you have these resonant conversations, the jury gets it and it's in the atmosphere versus being convinced or persuaded.
Jody Moore:
Exactly.
Sari de la Motte:
Is that what I'm understanding that correctly?
Jody Moore:
Yeah. We want them to draw their own conclusion, but again, I don't want them ... the beauty of the resonance or the level three is they're not actually drawing the conclusion in their head. It's like they're drawing the conclusion in their heart. It's a feeling. It's like, "Ooh, this person really believes what they're saying. This person really like, I get it. I get why this is important."
Sari de la Motte:
And what's persuasive is when the person is real and can connect to the jury in that way. And how interesting that we'd be talking about resonant conversations in expert witnesses, but here it is, and you guys just lived it. As we close out today, I think this has been so helpful, and hopefully it's made all you all realize we need to do witness prep differently and that Jody and Marlo are amazing and you need to have them come and help, when that makes sense, of course. What would you two say is the overreaching or the overarching goal of witness prep with an expert?
Jody Moore:
The word that pops to mind for me is empowerment. I want the expert feeling that feeling we talked about earlier where they're empowered to go in and do their job, which is these are the opinions and this is why they're right, and here's why you, the jury, should make this decision. But I want them to feel empowered to stand behind that and really plant their flag.
Sari de la Motte:
Love that.
Marlo Arnold:
Yeah. I think the word that comes to mind for me is trust. So the expert, if they understand their role, I think they trust that they can do that role. They can fill that role. And it also goes back to this practice piece. If you are willing to drop your act, your professor act, and trust that when I show up as me with this jury as authentically myself, I'm going to connect with them and they're going to get it.
Sari de la Motte:
It's a self-trust and a trust of the jury.
Marlo Arnold:
And a trust of counsel, frankly, because of your practicing being real with the attorney you're working with then you're going to develop that trust.
Sari de la Motte:
Which I think is another reason why we practice, right? We say, even though we don't have our openings memorized here at H2H, we practice and we say to have the words in your mouth, to not be stumbling, to get it into your muscle memory. And so that practice is so important, not only to really go, "Okay, here's what this conversation should look like," but make that connection with the attorney. I think it's very, very different.
I do remember you saying afterwards that this witness had said he had done many, many witness preps before. And what did he say about the witness prep that you guys did?
Jody Moore:
He said this far superseded any other experience.
Marlo Arnold:
I think he used the word "mind-blowing."
Jody Moore:
He did.
Sari de la Motte:
I remember right.
Jody Moore:
That's right.
Sari de la Motte:
Yeah.
Marlo Arnold:
He said it was mind-blowing.
Jody Moore:
Yeah, because it was so different.
Marlo Arnold:
It was not what he expected. I think that they expect us to come in and be like, "I don't like that suit. You can't wear that watch. You're sitting funny. When you cock your head to the left, it means you're lying," right? I think they were expecting that type of feedback and interaction, and we sat down and we're like, "What makes you want to be an expert?" And it was like, okay, well, we're hitting the ground running. So after two days, we were bonded and it was a different experience, for sure.
Sari de la Motte:
Love it. Well, thank you to both of you for being here and talking about this very important topic. It's so fun to expand the method and now get into some of these other areas and go, "Whoa, what we were doing in voir dire, it works over here too in this way.
Marlo Arnold:
Yes.
Sari de la Motte:
So, thanks for being with us, and we're going to see you again very shortly.
Marlo Arnold:
Thank you.
Jody Moore:
Thank you.
Sari de la Motte:
Yeah.
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