Don’t Whine! Win Juror Votes with Witness “Can Do” Attitude (Part II, Defense)

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 question, 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 their role, their experience, their situation. An attitude of imparting information, of sharing an experience, will gain far more sympathy with jurors than witness belligerence.

Not “The Other Side Of The Story,” The Other Story

It doesn’t matter which side you represent, you must tell a story. For the plaintiff side, this is obvious: there’s a wrong to be righted, and it always has a story. For the defense side, this is equally true, though not always acknowledged.

You see, it’s not about “the other side of the story,” for that places the control back in the plaintiff’s hands. The plaintiff still defines the terms of the game, the boundaries of play. It’s about “the other story” where the defense presents an entirely different scenario for jurors to experience. Now the playing field is level. Jurors can choose to be convinced by one story or the other.

The truism “the best defense is a good offense” holds. Instead of defending, defense now speaks to the plaintiff’s claims by showing how they fit as legitimate, “good” pieces within the defense’s “story.” For example, with a med mal case, the defense could include as part of its story how the doctor's procedure/process is highly regarded - the best possible and safest course given the patient’s condition. Or how that doctor trusts, relies on, and has seen excellent results from the procedure/process, what diagnostics were used to validate the doctor's choice, the doctor's well-thought out decision-making process (“decision tree”), as well as how the plaintiff neglected the doctor's instructions. And of course, the alternate causes for the plaintiff’s current condition.

As laborious as the above may seem, giving the jurors a rich and many-pronged defense story, as opposed to simply defending against specific claims, will greatly increase your chances of a winning case.

The Lie, Continued...

As much as jurors resent a witness who lies, you must have inconvertible evidence that someone is out and out lying in order to even suggest it.

Even then, it’s best to let the jurors come to the “Lie” conclusion on their own. As Bob Pave, of Pave & Bogaards puts it: “I never say that somebody is lying. I say that it's not exactly "correct," not exactly "truthful," not exactly "forthcoming" and stuff like that. I lead them right up to the edge and let them attach the word "lie" to the plaintiff, all by themselves. [e.g., Hell, it's a downright lie.]”

An effective way to help the jurors get there, is to use a “Chart of Inconsistencies.” As defense, for example, you could bullet on a chart what the plaintiff told Dr. A, the different story he told Dr. B, and the yet more different tale he told at deposition. Or as plaintiff, you could bullet on a chart what defendant told the police, what was discovered in emails, what she swore to in interrogatories. Such a chart alone, since it references facts, has more impact on today’s jurors than your forceful expostulation “And he lied!!” ever could.