Listening With the Third Ear: The Testimony Between the Lines

A witness is being deposed. The attorney asks a question and receives an answer that seems responsive. Nothing in it is obviously explosive. There is no admission. There is no glaring contradiction. The attorney moves to the next question.

But I don't.

Something about the answer registered with me. Perhaps I was surprised by a particular word. Perhaps I felt an instant of doubt that I cannot yet completely explain. Perhaps the witness looked down while answering, glanced toward another person in the room or displayed an expression that seemed at odds with the words being spoken. Perhaps the witness conspicuously failed to say something I expected to hear.

Whatever prompted my reaction, I don't let it disappear. I register it, think about why I reacted to it and consider whether it points toward a question that hasn't been asked.

That is part of what I mean by listening with the "third ear."

After 25 years practicing psychiatry, I learned to pay very close attention not only to what another person says, but to my own internal response while listening. Most people have these reactions constantly. Something about a statement strikes them as slightly odd, incomplete or unconvincing. A facial expression creates a momentary sense of incongruity. An omission generates a flicker of curiosity. Then the conversation continues, another fact occupies their attention and the reaction disappears.

I spent decades training myself not to let it disappear.

And in litigation, that can matter enormously.

My Internal Barometer Is Not Evidence. It Tells Me Where to Look.

There is an important distinction here. An internal reaction does not prove that a witness is lying. A downward glance is not proof of deception. An unexpected word does not establish culpability. A person's affect can be influenced by anxiety, temperament, trauma and countless other factors.

The value lies elsewhere.

When my internal barometer moves, I notice that it moved. Then I ask myself why.

What was it about that answer that surprised me? Why did I suddenly doubt something? Why did the witness's narrative seem to become less credible at precisely that moment? Why did an omission feel conspicuous? Why did the witness look toward another person while answering that particular question? Why did the story suddenly seem truncated?

Then I think through what the answer, or the omission, expression, gesture or glance, could imply and what follow-up might test those possibilities.

The objective is not intuition for intuition's sake. It is intuition disciplined by decades of clinical experience and converted into questions and strategy.

That can be a very different way of listening from the way a very experienced attorney listens to testimony.

The Lawyer and the Psychiatrist May Hear Different Things

A skilled attorney listening to a deposition has an enormous amount to process. Counsel is thinking about the elements of a claim, prior testimony, documents, impeachment, objections, chronology, admissibility, the theory of the case and where the examination needs to go next.

That attorney is not somehow deficient for failing to notice something that catches my attention. Quite the opposite. The attorney is deploying years of specialized training.

But I am deploying different specialized training.

I have watched depositions and courtroom testimony and found myself thinking, the witness just said something critically important, and nobody followed up on it.

The sentence may have sounded innocuous from a legal perspective. Psychologically, however, something about it didn't fit.

And when something doesn't fit, I want to know why.

The Question Hiding Inside the Answer

A witness rarely announces, "The next thing I am about to say is the part you should investigate."

Instead, the clue may be embedded in an otherwise ordinary answer.

A witness may introduce a detail that wasn't necessary to answer the question. Someone may offer an explanation before being asked for one. A person may suddenly become extremely precise after having been vague about everything else. Another may answer a question adjacent to the one that was actually asked.

The content itself may not be remarkable. What catches my attention is that something about the narrative has changed.

That is where the third ear becomes useful.

I may want counsel to return to a particular word and ask the witness what was meant by it. I may want to know why a particular person was suddenly introduced into the account. I may suggest revisiting a period of time that the witness moved through unusually quickly. Or I may simply want the attorney to ask the witness to tell the story again, this time without supplying the structure through tightly focused questions.

The purpose is not to confirm my intuition. It is to test it.

Sometimes the answer will reveal that the moment meant nothing.

Sometimes it won't.

People Sometimes Reveal What They Are Trying Not to Reveal

One of the fascinating realities of listening closely to human beings is that what a person omits can become conspicuous precisely because it is missing.

A narrative suddenly becomes staccato. A detailed story becomes strangely abbreviated at one particular point. The tone of voice changes. Someone who has been maintaining eye contact looks down. A witness glances toward another person as though seeking reassurance before answering. A person describes what everyone else did but seems to move around his or her own conduct.

None of these things independently establishes truth or falsehood. But each can create a question.

Psychiatrists spend years listening to narratives that are incomplete because human beings themselves are complicated. People consciously withhold things, but they also unconsciously organize stories around shame, fear, guilt, loyalty, anger, humiliation, self-protection and the need to preserve a particular image of themselves.

Sometimes what has been omitted changes the meaning of everything that has been included.

My job is to notice the gap.

The Third Ear Works on Documents, Too

I don't need a witness sitting across from me for this process to occur.

The same narrative instincts operate when I review deposition transcripts, medical records, police reports, emails, text messages, telephone transcripts and other documents.

As both a psychiatrist and a multiple New York Times bestselling author, I have spent much of my professional life immersed in human narratives. Psychiatry taught me to ask why a person tells a story in a particular way. Writing taught me to recognize when a narrative does not hold together.

Those skills overlap considerably.

Sometimes I will read a sequence of records and have the sense that the story is incomplete. An important event may seem to appear without the events that should logically precede it. An explanation may seem too neat. A person's later characterization of his or her motives may not seem to fit comfortably with contemporaneous communications. A seemingly incidental detail may change the psychological meaning of an entire sequence of events.

Again, the feeling that something is wrong with a narrative is not a conclusion.

It is the beginning of an inquiry.

I go back through the material and try to determine precisely what generated my reaction. That process can lead to focused observations for counsel, additional records worth seeking, areas for further investigation, questions for witnesses or a different way of conceptualizing the case itself.

The Third Ear Can Operate Throughout a Case

This kind of psychological listening can be useful long before a witness takes the stand.

Before a deposition, I can review records and help identify psychological themes, inconsistencies, omissions and areas that may warrant examination. I can consider not simply what questions counsel needs answered, but how a particular witness's psychology and narrative may influence the way those questions should be asked.

During testimony, the task becomes more immediate. I am listening for moments that deserve another question before the examination moves past them.

After a deposition, reviewing the transcript with the same perspective may identify issues that affect subsequent depositions, document discovery, witness strategy or the broader theory and narrative of the case.

The same perspective can also contribute to trial preparation and jury selection. Jurors, witnesses, litigants and attorneys are human beings before they are participants in a legal proceeding. They bring motives, fears, loyalties, defenses, identities and personal narratives into the courtroom with them.

Understanding those forces does not replace legal analysis.

It adds another dimension to it.

Don't Let the Moment Pass

The most consequential moment in a deposition may not announce itself.

It may arrive as an unnecessary sentence, an omission, a peculiar choice of words, a shift in tone, a downward glance, a look toward someone else in the room or an answer that technically responds to the question but somehow doesn't complete the story.

Then the next question is asked.

And the moment is gone.

After 25 years practicing psychiatry, I learned not to automatically move past those moments.

My internal reaction tells me that something may deserve attention. My clinical experience helps me think through why. Then the task is to translate that insight into a question, an investigative direction or a litigation strategy that counsel can use.

That is what listening with the third ear can bring to a case.

Sometimes the most important thing a witness communicates is the thing almost everyone else in the room would have let pass.