Your Client, Expert and Witness E-Impressions Matter! Manage Them Well

 

What is written has more weight than what is said. Always. That is why, when something is important, we write it down. That is why, in any courtroom, jurors will believe documents over witness testimony.

Unfortunately, clients often forget this, if they even ever stopped to think about it in the first place. And the handy “delete” button on our various devices leads one to believe that whatever is written in emails or texts, or posted on social media doesn’t really exist in the same way a written document does. We now know all too well the inaccuracy of that belief.

Educate your clients, experts and lay witnesses. E-impressions are just as important as the impression your client, witness or expert makes on entering the courtroom. You need to know what e-impressions already exist, should damage control be required, and emphasize to your clients, experts and witnesses the absolute necessity of being vigilant about how they are perceived online.

The same goes for your team. They must manage their online presence with the same care they manage all other aspects of their practice.

There is nothing evanescent about virtual reality; in a certain sense, it is, or certainly can be, in perpetuity. Poster beware!

Watch Those Jurors: Body Language Outdoes the Spoken Word

 

The courtroom setting is unfamiliar to most prospective jurors as they sit with a group of strangers and are grilled by counsel during voir dire. In addition, potential jurors may respond differently depending on whether they want to be off or on a particular jury. Therefore, their responses may not entirely reflect that person's "truth."

However, an individual's body language will almost always be consistent with the person's "truth," despite what is spoken. To assess the veracity of any given prospective juror’s verbal response, pay close attention to their body language, in particular body language that conflicts with oral responses.

Watch each prospective juror's body language as they respond to questions, whether the

questions come from you, opposing counsel or the judge. For example, if prospective jurors say, “Yes, I can be fair" but their head is going side to side, signaling "No," believe their body language. Similarly, if potential jurors say, "No, I would not be prejudiced against . . . " but their head is bobbing up and down, signaling "Yes," believe their body language which is clearly saying "Yes, I would be prejudiced."

If prospective jurors say they would give damages in a certain type of case, but their arms are crossed in front of their chest, either they won't give damages, or they would award very little.

If prospective jurors say, "Yes, I can keep an open mind," but they squirm in their seats, something about keeping an open mind is making them anxious. Continue to observe

the behavior when asking the next questions. See if the squirming continues. If so, this may indicate a need to visit the restroom or anxiety about being a juror. If, however, the squirming ceases, the person's anxiety is only relevant to that particular question and can be read in that context.

Body language always outdoes the spoken word.

Help Your Witness Deliver Effective Testimony with Full Sentences

 

Rare is the witness who isn’t anxious, worried, scared--even terrified--during deposition or cross-examination. Often this leads to a rapid pace of speech. Not only that, but witnesses tend to believe that if they just blurt out their response, they’ll get this dreadful experience over with sooner.

Now, there’s nothing wrong with speaking quickly, in and of itself, but speaking quickly often means the client fails to think things through. Failing to think through a response can often lead to flawed testimony if not downright disastrous testimony. Unfortunately, simply telling a witness to “slow down, speak more slowly” may work for a response or two, but with the pressure of nerves, the witness’s pace then picks up rapidly.

One technique that works well while preparing the witness for their testimony is to encourage the witness to speak in full sentences and to do so by first repeating part of the question. This has two advantages. First, it forces the witness to listen better to the question asked. You can’t very well repeat part of the question if you haven’t carefully listened to it. Secondly, it slows the response down. The witness is forced to think through their whole response, to concentrate. And that ensures better testimony.

For example, in response to “How soon after this meeting of May 22 did you visit the construction site?” “I visited the construction site next on May 30” slows the response down, as opposed to a simple “May 30.” It also helps the witness stay on track with the subject at hand.

This is even more critical with a compound question. For example, “Do you know whether you saw water in the trench or ever examined that trench before May 30?” The quick response of “No” could be inaccurate as to either seeing the water or examining the trench. A full-sentence response, such as “I did examine the trench before May 30, and I did not see water in the trench before May 30” may be wordy but could be more accurate.

Full sentences work to slow the witness down so that their brain is engaged before the response and to produce a more accurate response.

 

Classic Juror Misunderstandings

 

The brilliant cartoonist, Wiley Miller (“Non Sequitur”), captured the misunderstandings between men and women as few others have. For example, the wife says: “Let's go shopping." The husband hears: "Let's go drain the life force from your body." The husband says: “Honey, are you almost ready yet?" The wife hears: "Life as we know it will cease to exist unless you can alter the space-time continuum."

My experience with jurors has led me to conclude that similar misunderstandings occur regularly in the Courtroom between attorneys and jurors. For example, the lawyer says: “Negligence.” The juror hears: “Forgetfulness.” The lawyer says “Proximate.” The juror hears “Approximate.” The lawyer says: “Standard of care.” The juror hears: “Like OSHA.” The lawyer says: “Preponderance.” The juror hears: “Heavy thinking.”

I could go on and on. Lawyers like to say a graphic will “depict” things. Jurors need to know what the graphic will “show.” The lawyer says this event was “prior” to the current one. Jurors want to know what came “before” what. And “aforementioned” doesn’t even compute.

You must speak a language the jurors understand if you are to persuade them. For example, explain legal terms such as negligence so there can be no confusion with the more common use of the term, forgetfulness. Use words you used before you became a lawyer: familiar words, easy-to-understand words, words that don’t require more than a high school education.

With that, you are far more likely to have – a winning case!

Be Good to Your Jurors: Connect the Dots!

 

Too often, in jury debriefings and in focus groups, jurors complain that the attorneys do not connect their points or evidence to the specifics of the complaint. Furthermore, attorneys rarely fully explain the jury instructions to the jury, tying in those instructions to the attorney’s interpretation of the case.

In a classic case, namely the Blagojevich trial, the jury foreman brought up this very dilemma, saying of the U.S. attorneys: “They didn’t impress upon the jury the importance of the different counts and how they related to the six schemes that Rod Blagojevich was charged with. And as a consequence when we went into the deliberation room we were very confused. We didn’t know how to start….it was days before we found the indictment. We didn’t even know that the indictment was in the evidence carts.  Once we found that we were elated.” (Chicago Tonight TV show)

This lack of clarity leaves jurors in distress. They are confused, perturbed, and unable to think in a reasonable manner about the case.

Be good to your jurors. Always make the connection for them, in obvious, preferably visual ways, between the evidence and testimony, and the complaint/cross-complaint. Do the same with the jury instructions.

Experience shows time and again, that the attorney who presents their case the most clearly, all else being roughly equal, is the most likely to succeed.

The Eyes Have It: Does Your Witness Know How to Look at Jurors?

 

Telling your witness to look at the jurors during their testimony without teaching them how to do so can be fatal to your case. 

A scared, anxious witness may only dare a quick terrified glance mid-sentence at the jurors, which confirms in the jurors’ minds that yes, this witness is surely hiding something. So much for the witness’s credibility.

Or a witness may attempt to “duke it out” during cross by glaring at the jurors during their response, rather than focusing on opposing counsel. This does not benefit your case.

Help your witness look at the jury in a way that enhances their credibility even as it satisfies jurors’ need to see the witness’s eyes to determine veracity. Which, as many of us will remember, is why our mothers would say: “Look me in the eyes when you’re talking to me!”

During direct, suggest that your witness, when they have a response of a couple of sentences or more, begin their answer by looking at you, then turn out to the jurors and look at different jurors during the bulk of their response, to conclude their response by turning back to you during the last few words. If the witness can angle their body very slightly towards the jury box, then turning out towards the jurors is smoother. All this sounds easy, and certainly becomes easy, but only with practice.

I have found video-recorded role-play to be the most effective way to help witnesses get comfortable with turning to the jurors. It’s best to do this during direct, because during cross, the witness will rarely be given an opportunity to respond with more than a few words, and focusing on opposing counsel is their primary responsibility at that point.

“Look at the jurors,” yes, is a critical and essential instruction, but how it is done can make all the difference to your case.

 

Expert Under the Gun of Cross? Multi-sided Response to the Rescue

For your expert witnesses under the gun of cross-examination, usually the most problematic answer is a flat “yes” or “no.” Science holds few absolutes to be true, thus most scientists (which is the majority of your experts) are uncomfortable with an uncategorical “yes” or “no” in response to many of opposing counsel’s questions.

Yet opposing counsel has one goal in mind: get that expert to say “yes” to certain questions and “no” to certain others.

A useful technique is to suggest to your expert that they respond with a qualifier in front of their “yes” or “no,” such as: “In this situation, yes.” “Under certain conditions, no.” “When X is detected, yes.” “In the presence of Y, no.” And so on.

These responses open the door to asking your witness later, why they qualified their answer in such a manner.

Now, here’s where it gets really interesting: the results of meta-research on 107 different studies conducted over 50 years on persuasion and sidedness show that two-sided arguments are more persuasive than their one-sided equivalents, as long as counter-arguments are raised when presenting the opposing view.

So, in telling the jury the rationale behind the qualifier, the expert can present their thinking. For example: “It could be said, as opposing counsel’s expert stated, that X is a determining factor, however, more recent studies show that Y is the more decisive, thus the basis for my opinion.” This format serves to present the two sides of the argument, even as it raises the counter argument.

According to the meta-research, not only is such an approach more convincing, it also boosts the speaker’s credibility.