Galina Davidoff, BridgeTower Media Newswires
Prosecutor: “And what did you say to the 15-year-old girl after the competition?”
Defendant (in a sexual molestation case): “I said, ‘You are a [expletive].’”
Prosecutor: “What else did you say to the young girl?”
Defendant: “I said, ‘You deserve a kick in the ass.’”
The defendant answered many questions with the same directness. He was not ashamed of his prior acts and statements. He was not trying to explain or minimize them as he was looking directly at the prosecutor.
The (mostly female) jury deliberated for an hour before acquitting the defendant of all charges. The reason for the acquittal was not the defendant’s foul language, but the facts of the case that convinced the jury that the allegations could not be true.
However, I believe that if the defendant did not tell the plain truth, he would have lost his credibility and the outcome could have been different.
Instead, the defendant was true to himself: a man who spent his life working in a barn, training horses and riders. On the stand, he spoke in the same language that he used every day.
Initially, his attorneys and the judge thought that he would make a horrible witness. But when the defendant’s performance was tested in front of surrogate jurors, they saw him as completely trustworthy, foul language and all. And so did the actual jurors, who thought he was authentic and believable.
Is being authentic always good? Of course not. Some people are at their worst when they are authentic. But if you decide to put a witness on the stand and you believe that the witness is telling the truth and deserves respect, you want them to be true to themselves.
This election season highlights one very important point for litigation: People can forgive a person a great deal if the person sounds authentic, while a polished and prepared presentation is often highly suspect.
That is particularly true in business litigation. But how can you help your witnesses be genuine after they’ve been through months, or even years, of litigation? Conversations with lawyers, preparations for depositions and depositions themselves tend to introduce too many new rules for people to remain fully authentic.
Most witnesses, after months of being told not to volunteer, not to try to persuade the opposing counsel, to keep their opinions to themselves, to avoid any guessing, to remember the important details, begin sounding stilted.
So, how can you get some of their authenticity back for the trial? How do you “refresh” your witnesses? Here are a few tips for your last preparatory sessions:
1. Attorneys talk a lot about their case and ways in which they would address different issues at trial. Talking helps them think, find the right words, and become comfortable with all the turns and twists and challenges. Witnesses need the same conversational space. Letting the witness talk more freely while attorneys listen is helpful in alleviating a lot of concerns that get in the way of authenticity.
2. Ask the witness what impression she wants to make on the jury. Most of us are mindful of the way we are perceived, so this often opens up a conversation that helps the attorney and the witness get on the same page. Some people want to stress their honesty, others their work ethic. Whatever the focus, it is important to know it and to bring it in line with the story you are trying to tell.
3. Ask the witness what concerns him about his testimony; which questions does he consider to be potentially the most difficult. Once the witness starts talking, listen and do not rush in with your own strategies to deal with the difficulties. One of the most frustrating experiences for witnesses and litigants is feeling that they are not being heard.
4. Think about the witness’s personality, motivations and role, and make sure they are included in your story and are congruent with your themes. You cannot change people for the trial, and if you try, that is when you run into problems. But you can adjust your story to help your witnesses.
5. Find small changes that help witnesses be themselves while addressing jurors’ concerns. For example, an authentic patent attorney tends to give very precise answers. Unfortunately, such unfettered authentic testimony often makes jurors feel that the witness is splitting hairs and avoiding a straight answer. You may not be able to turn your patent attorney into an engaging science teacher, but you can ask him or her to provide a “yes” or “no” answer first and the explanation and clarification second.
6. Sometimes you need to do some digging to discover the authentic person behind a mask that he or she hides behind. Consider another criminal case, in which a defendant testified in his defense in a rape case. First impression: arrogance. He made tens of millions selling his company. He has an athletic posture, wears his hair slicked back, and has a direct and unfriendly gaze. A few minutes into the conversation, it turns out that it took him a long time to sell his company because he wanted to be sure that his employees would still be employed. Why? Because they were like family to him. That arrogant look he was projecting earlier? It was not authentic. The authentic defendant looked and sounded like he cared about people. After we messed up his hair, he was able to be himself on the witness stand and ultimately walked away with a not-guilty verdict.
It is a tremendous accomplishment when you can bring out the best in your witnesses and tell a story that weaves together the facts and personalities in a way that connects with the jury. However, nothing “perfect” ever rings true and so you have to embrace, frame and present your witnesses’ imperfections. Do not sweep them under the rug, but make them a part of your story.
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Boston-based Galina Davidoff is director of jury consulting for Magna Legal Services.
