By Richard Gabriel
The Daily Record Newswire
We are now in political high season with pre-packaged messages extolling or disparaging candidates inundating our airwaves.
Most of it is negative. The old adage about negative political commercials is that no one likes them but they work. However, a side effect of negative campaigns and the whole tenor of political discourse in this country is that it has created an increasingly skeptical public.
With distrust of our political process at an all-time high, we must be especially vigilant that we do not trigger this same suspicion in how we present witness testimony in the courtroom.
Witnesses are the primary way we communicate the case story. There is a temptation to adjust, refine and even script their testimony to accommodate the legal theories of the case. Additionally, with attorneys and witnesses having spent months, if not years, involved in the litigated subject, it is easy for them to develop a high-level dialogue, replete with acronyms and industry terms, leaving a jury feeling confused or just plain bored.
Jurors are the “fact checkers” for claims made by the parties. Suspicion, confusion and boredom can trigger juror resistance, making it hard to clearly communicate the events, themes and concepts of the case. Jurors crave candor in order to really evaluate “what happened.”
Here are some things trial lawyers can do to increase witnesses’ ability to communicate authentically:
• Give only a brief introduction.
When we first interview witnesses, we usually give them a preamble about the nature of the litigation, the law and even the themes that we plan to present. This tends to condition the witness to what we want to hear and may make a witness start to shade his or her testimony.
Instead, give the briefest introduction to the litigation and then ask them how they see it. Pay attention to their words and descriptions.
Minimize your authority and try to make them as comfortable as possible. This method also allows witnesses to become more firmly rooted in their own experience of the events in question and helps you to build rapport with them. The problem with highly worked testimony is that opposing counsel has an easier time during cross-examination because the witness is searching for the “scripted” answer instead of his or her natural recollection.
Ask your witnesses what they want to accomplish with their testimony.
This helps you to identify a witness who may have a hidden agenda or who thinks it is his or her job to be the advocate in the case. It is important to establish each witness’s role so that he or she can stay within his or her personal range of knowledge. This increases the jury’s understanding about why you have called the witness and where he or she fits into your case.
• Ask witnesses continuously, “What does that mean?”
Do this even if you know what a witness means. This helps witnesses reduce jargon and technical complexity in their answers. In essence, you are stepping into the jury box and asking the jury’s unspoken question.
It is also important to ask, “What were you thinking?” and “How did you feel at the time?” These questions help to put the jury in the witness’s shoes instead of just observing the witness’s dry recitation of events.
Make sure to sprinkle in small anecdotal notes about the witness’s life to personalize him or her for the jury. For your experts, use their accomplishments or experience to emphasize their methodology and conclusions rather than front-loading their resume at the beginning of their testimony.
• Think about ways to engage the jury.
If you are allowed, get the witness on his feet to describe a demonstrative exhibit or to calculate a formula on a white board. Help your witness to make eye contact with the jury by gesturing to the jury box or by standing next to the box during your examination.
• Make it seem as if the witness is leading the conversation.
Remember, the jurors know you are an advocate and are trying to persuade them. If your questions seem to be prompted by what the witness is saying rather than the attorney’s agenda, it will seems less like an overt attempt to shape the testimony to influence the jury.
• Cross-examine your own witness.
Ask the witness some of the tough questions that you anticipate opposing counsel will ask. This gives both you and the witness more credibility by showing the jury that you are not afraid of addressing difficult issues and you want them to know the whole truth. It also creates a little dynamic tension in your examination which will make the jury pay attention.
Break up the rhythm of the testimony by interspersing a couple of surprising questions in the examination to get the jury’s attention. Make sure you let the witness know you will be asking them tough or surprising questions.
No doubt, some of these points may be limited by case strategy, the skill of a particular witness or individual court rules. And it is important to recognize the importance of controlling your witnesses’ testimony in order to prevent disastrous mistakes or admissions.
However, if we can help the witness tell it like it is, we increase the jurors’ attention, their retention of facts and their belief that they are hearing the genuine truth.
Richard Gabriel is President of Decision Analysis, a trial consulting company with offices in Los Angeles, Chicago and San Francisco. He is co-author of Jury Selection: Strategy & Science, published by Thomson-West.
