Stop Whining! Win Juror Votes with Witness “Can Do” Attitude (Part I, Plaintiff)

Your key witness is usually your client, or your client’s representative. If plaintiff, the witness is likely to complain, a litany of “He/she/they done me wrong.” Perfectly understandable, why else would your client be there in the first place! However, to juror ears, an unending stream of complaints sounds like whining, and jurors don’t like whiners.

What they like are people who, despite their misfortunes, are valiant, are giving it the best shot they can. This doesn’t mean your plaintiff client stiff-upper-lips it to where through gritted teeth/wired jaw they maintain “All is well,” but rather that you make sure, during direct, that you expose the ways in which your client is doing the very best that they can to survive/heal/improve things despite horrendous odds.

Now you have a potential winner in juror eyes, not a loser-whiner.

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.