If plaintiff’s counsel’s task is to make sure the
client/witness doesn’t alienate jurors with a purely “they done me wrong”
victim mentality, defense’s is different.
“Don’t whine” might be better stated “Don’t defend,” which
is mightily challenging for defendants on the stand, who generally believe they
are unjustly accused. Yet the defendant who argues with opposing counsel, whose
testimony is a litany of “Yes, buts” and who attempts to evade plaintiff’s
counsel’s most basic questions, will not find favor with jurors.
Instead, explain to your defense witnesses that during
cross, at best, they will only be able to give a qualified “yes” or “no” (as in
“At that time, yes” or “In that situation, no”), and at all costs must not
argue with opposing counsel (“That’s not how it was, I/they. . .”).
Reassure your witness by role-playing with them how direct
will go, not just by telling them “Don’t worry, I’ll unscramble all that in
direct.”
The “can do” attitude for defense witnesses comes through on
direct, when the witness, if and as is appropriate, educates jurors to the
witness’ role, their experience, their situation. An attitude of imparting
information, of sharing an experience, will gain far more sympathy with jurors
than witness belligerence.
