A Simple Technique to Help Jurors Discredit a Lay Witness

When you’ve had a hand in making a decision, you’re that much more likely to go along with it. Jurors are no different. Questions in cross-examination that allow jurors to arrive at the unmistakable, inescapable, conclusion you want them to, are far more effective than ramming the conclusion down their throats or risking a sympathetic answer from opposing counsel’s witness.

For example: The lawyer is cross-examining a lay witness at the scene of a bus-pedestrian accident. The lawyer represents the pedestrian.

Question: Ms. Smith, did you see the bus as it came towards the intersection of First and Main shortly before the accident?

Answer: Yes, I did.

Question:  Could you tell us what the color of the light was for the bus as it came down First?

Answer: It was green, a green light.

Question: Really? But isn’t it true that when you spoke to the police officer shortly after the accident you said the light was red?

Answer: Oh, well, I’m sorry, I was a little nervous. I’m sure the police officer report is right.

The jurors may very well believe the witness, since she’s being humble and apologetic and who wouldn’t be nervous after witnessing an accident? The lawyer meanwhile has lost the opportunity to show the jurors that the case isn’t as cut and dried as defense would have them believe.

A more effective way to approach this might be:

Question:  Could you tell us what the color the light was for the bus as it came down First?

Answer: It was green, a green light.

Question: Ms. Smith, did you talk with a police officer right there at the scene, just after the accident?

Answer: Yes, I did.

Question: And did that police officer ask you what color the light was for the bus as it came down First?

Answer: Yes, I think he did.

Rather than pounce on the witness at this point and give her the opportunity to sympathetically correct herself, the lawyer could produce the police report and show (visuals work!) the portion where Ms. Smith unequivocally said “The light was red,” and simply end his cross on that note.

The jurors can now come to their own conclusion that Ms. Smith is, for whatever reason, being less than truthful, and are now much more likely to accept the police report as stated, which was exactly what the lawyer wanted them to do.

Train Your Expert Witness to Educate

If you are blessed with an expert witness who not only is proficient in his/her area of expertise, but also juror-sympathetic, count yourself among the lucky few, and hit “delete.” If, however, you sometimes find yourself working with an expert who, although proficient in the required expertise, but less than juror-sympathetic, read on.

A common problem is the expert who holds an attitude of “This is so because I, THE expert, say it is so.” Jurors are not convinced by such arrogance, even if it is well-deserved. What does convince jurors is the expert who seeks to educate the jurors, rather than impose his/her opinion. Encourage your experts to present information in a way that guides the jurors through a series of logical steps that results in an inescapable conclusion that just happens to coincide with said expert’s opinion. 

You can help your expert get there by challenging him/her in prep sessions with questions such as: “Why do you hold this opinion? Couldn’t it be X instead?” “Explain it to me as you would to a high school student.” “How did you arrive at this opinion? What’s the logic, step by step?” Remind your expert as often as necessary that their job is not to defend/plead the case – that’s your job. Their job is to educate the jurors to why your interpretation is the one that should prevail. Educating is far more compelling than arguing or fighting with opposing counsel - which is, more often than not, a losing battle. And you’re there to win!

Two Easy Tips For Persuasive Expert Testimony

Experts are experts in their subject matter, but not necessarily experts at testifying, as many a lawyer has found out at trial, much to his/her dismay.

One way to make sure your expert testifies in a way that will persuade the jurors, is to have your expert formulate "umbrella statements." These are statements that give an overview of what is to follow.

For example, an expert might begin with the umbrella statement "Upon examination, I found significant differences between X and Y," rather than launching immediately into a description of the features of X, not mentioning Y until 10 minutes later, and not discussing the differences between the two until another 10 minutes has elapsed. Jurors need to be guided. Without the benefit of an "umbrella statement," jurors don't know what they should be listening for. Your expert's excellent points may be lost in the clutter.

Another way is to have your experts bottom line key points as they conclude a given

segment of testimony. Phrases such as "To sum it all up," or "What this means is" are helpful in introducing a concise, condensed, easy-to-remember version of  the critical point just made.

With a jury, clarity and easy-to-grasp concepts/points make for the best testimony.