LIES: HOW BUBBA CONFIRMS A LIE

By Andrew Gould

Note from Papa Don:

Andrew, who is no stranger to Reptile©, seminars or KBC, was given by my firm a series of low and mid-level cases for purposes of learning. These were cases the firm would otherwise not take but since Andrew needed hands on experience we accepted them for him. Although we didn’t choose it this way, a number of these cases had what Andrew believed as a number of clear cut lying dogs. Never one to jump to conclusions, Andrew decided to invoke a focus group to determine if jurors could see the lie and more importantly, why. This approach yielded some startling findings, and while all of those cases ultimately settled, Andrew continued vigorous focus group research on lying. The following is the first of what may be several parts.  This first article illustrates Andrew’s findings regarding what jurors look for when confirming their conclusion that someone is lying.

Abraham Lincoln once said, “You can fool some of the people all of the time, and all of the people some of the time, but you cannot fool all of the people all of the time.”  A good liar can hide initially, but never remain hidden forever; and, as we all know by now, the Reptile will not tolerate a liar.

That is why, when we have a lie in our case, we must move it front and center.  However, a common mistake we make as lawyers is to assume that Bubba recognizes a lie because we believe it is so obvious—how could anyone miss it?  As with any assumption, this is dangerous to make without first testing it in a focus group.  Often times, the facts we recognize to prove the lie are the facts about which Bubba could not care less.

For instance, I recently had a rear-end collision case where the defendant claimed a car “came out of nowhere,” cut him off, and caused him to swerve into my client.  He testified that the phantom car must have come out of a parking deck on his left, cutting him off, despite there being no parking deck anywhere in the vicinity—not to mention that there was a raised median, lined with trees, which ran down the middle of the highway which made it physically impossible for someone to have come from his left at the location of the crash.  I thought for sure a focus group would hone in on those facts as being proof of the lie.  How could they not?  There was no parking deck. And how could a car “come out of nowhere,” presumably having just jumped a raised median and taken out a tree?

Yet, the focus group never once mentioned what I perceived to be a clear contradiction of common sense.  Instead, they honed in on a series of things I never expected.  We played the deposition video of the defendant telling the story of what happened in its entirety.  The participants heard his story about the parking deck, and they knew about the median because they had seen aerial photos of the stretch of road where the wreck had occurred.  They heard his testimony about how he could not identify the type of vehicle that cut him off; nor the driver of the vehicle; nor any specific markings on the car itself such as bumper stickers, scrapes or dents.  And yet, none of those facts that would lead you or me to believe that the defendant was lying were the tipping points for Bubba.  Rather, for him, it came down to one small, yet important, detail that the defendant could not recall—the color of the car that cut him off.

To Bubba, the conversation began and ended with that fact alone.  Everything else was ancillary.  Yet, what happened next with the focus group was even more enlightening, and is the focus of this article.  Once their minds were made up that the defendant was lying, based on his inability to remember the color of the phantom car, the focus group began to hone in on his body language, inflection, and demeanor.  They found the defendant unreliable because he came across as “smug,” and “arrogant.”  They said his story sounded “rehearsed,” unauthentic, and almost robotic.  The fact the focus group had not mentioned any of this prior to them drawing their conclusion about the lie lead us to an unforeseen realization:  they were pointing to his body language, voice, and demeanor merely to validate a conclusion they had already drawn—that he was a liar.

But we did not take it as truth based on this single focus group.  Rather, we at the Keenan Law Firm began to run a series of focus groups designed to determine what, exactly, Bubba looks for when confirming that someone is lying.  First, it is important to understand that the factors we identified are not those Bubba uses to determine if someone is lying, but rather, to validate his already formed conclusion that someone is lying.

Below is a list of factors that our focus groups have repeatedly referenced when confirming their belief that someone is lying:

1. Sweating
2. Lack of eye contact
3. Turning red
4. Getting angry/defensive for seemingly no reason
5. Talking quickly
6. Stuttering
7. Changing the subject
8. Becoming guarded/defensive (i.e. crossing your arms or fidgeting)
9. Not knowing simple, common sense facts
10. Constant blinking
11. Hands covering face
12. Vague details
13. Emotionless tone when describing what Bubba views as a traumatic event (e.g. car wreck)
14. Lacking confidence
15. Looking up

Again, this list is not necessarily what Bubba looks at every time when determining whether a particular witness or attorney is lying.  In fact, there is substantial evidence that suggests otherwise.[1]  Rather, the above is a non-exhaustive list of verbal and non-verbal cues that Bubba will use merely to confirm that a witness is lying.

So if it is not what Bubba uses to determine if someone is lying, then why is this list important and how can you use it?  It is important because, once we have the lie, we can use this list to move the lie front and center of our case.  For example, in a med mal case where we have a doctor lying about the treatment provided and we know he is lying because numerous focus groups have told us so—we must tailor our questions, whether at trial or in deposition, to bring attention to the verbal and non-verbal cues listed above and to solidify the lie:

1. “Doctor, I couldn’t help but notice you covering your face with your hands, can you tell us what is causing you to do that? What are you thinking?”
2. “Doctor, I can’t help but notice you started suddenly stuttering, can you tell us why that is?”
3. “Doctor, I noticed you shifted and crossed your arms when I asked you my last question, why is that? What are you thinking?”
4. “Doctor, you haven’t made eye contact with me yet, why?”[2]

The answer is almost irrelevant as the purpose of asking the question is to simply highlight to the jury the verbal or non-verbal behavior that you know Bubba is seeking to confirm the witness is a liar.

Knowing where the lie is in advance of our examination of the witness allows us to formulate questions that draw the jury’s attention to the verbal and non-verbal cues we know they will use to confirm the lie.  Focus groups give us the lie, but it is up to us to move that lie front and center in our cases.  This is but one of many tools in which to accomplish that goal.

BOTTOM LINE:  The simple truth is, once the focus group gives you the lie in your case, use these cues (and any others your focus groups might give you) to drill home and make the lie the centerpiece of your case.

[1] I will be writing an article in the coming weeks that discusses the different reasons jurors have for deciding who is a liar and who is not.  Often times, the decision is made on a subconscious level, well before a juror hears the first fact in your case.

[2] Role play is essential to predicting when the deponent or witness will exhibit any one of these verbal or non-verbal cues.  When role playing, note which questions elicit which types of the above responses.  Make notations in your hit list so you are prepared for it during the deposition or trial examination.