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.

Overreach and Risk Losing the Case

Former Boston firefighter Albert Arroyo, called “the poster child for disability pension abuse” by some, was acquitted recently, much to the consternation of many, for the firefighter, while claiming work-related disability, appeared in various bodybuilding competitions. Jurors when interviewed stated that although most of them believed that Mr. Arroyo was guilty of fraud, they did not believe he was guilty of mail fraud, which was the charge put before them. The jurors concluded that since Mr. Arroyo did not mail his disability forms, but handed them in, he had no way of knowing his forms would in turn be mailed out. The jurors believed they thus had no choice, but to acquit him. They weren’t happy about it, but “we had to stick with mail fraud or nothing.”

There is a potent lesson in here for litigators: don’t over-reach! Proving mail fraud may have, if successful, gained more for prosecutors, but proving mail fraud defied common sense. And common sense is what jurors rely on.

You can’t buck common sense. The easiest, quickest way to find out if the charges or representations of negligence and causation you want to put before a jury will hold up, is to conduct a focus group. As long as your focus group is made up of a sufficient number of persons demographically representative of your jury pool, its members will tell you, in no uncertain terms, what they will “buy” and what they won’t. I guarantee, common sense will win out every time. Go look for it among your potential decision-makers. Do not assume that your version of what will fly, is the common one.

Harness Jurors’ Wandering Minds: New Science

New research from Harvard University psychologists (Matthew A. Killingsworth & Daniel T. Gilbert) shows that people spend 46.9% of their waking hours “wandering”--thinking about what isn’t going on around them, what happened in the past, what might happen in the future or never at all. Which wouldn’t be such a big deal, except that, as the scientists put it: “A wandering mind is an unhappy mind.” People aren’t happy about what they’re thinking about during their “wandering” times.

How is this relevant to your trial practice? Well, if you aren’t keeping your jurors’ minds engaged, those minds are wandering. The likelihood of their attributing the unhappiness their wandering conjures up to your less-than-compelling presentation rather than their own meanderings, is high. Unhappy people don’t tend to favor those who make them unhappy! There goes your successful case...

All the more reason to do your level best to make your courtroom time count. Get to the point, be succinct, develop hard-hitting bullets and emotional catch-phrases. Use visuals of all kinds – models, boards, animations, power-point (the complex type, not just words on a slide) – and anything else your graphics support staff can dream up. Use focus groups to help you nail what matters to jurors and hone in on that.

The more you keep the jurors’ minds on your track, the less they are inclined to wander, the greater your chances of success.

Handling the Angry Witness

You’re gearing up for trial, you hardly have the time or patience to deal with an angry witness. Yet there you are, in the unenviable position of having to prepare a witness who is angry for any number of reasons:

- The witness is a client, angry that this matter couldn’t be settled or that it even is in litigation at all.
- The witness is furious at being “required” to testify.
- The witness has healed or substantially recovered from the incidents at issue and resents having to deal with “it” all over again.

Whatever the witness’s reason, he or she is mad! And only too happy to tell you all about just how aggravated and upset they are. You try to get down to the business of prep with “OK, but we’ve got to focus on preparing you for your testimony,” which is labored, halting and difficult at best.

There is a more effective way. People in highly charged emotional states need FIRST to have their emotions thoroughly acknowledged, in order to clear their minds and hearts sufficiently to think rationally.

Start by reflecting your witness’s emotions: “It is frustrating to have to go through this again.” Let them respond with another emotional salvo, and follow that with something like “This has been really hard on you.” By now, the witness will have calmed down some, because you’re not resisting their emotion, you’re acknowledging it. Notice how the acknowledgement is done in third person, non-inflammatory terms. Once you sense that the witness is less angry, you’re ready to open the prep session with the use of the word “and.” “And that’s why we’re here today—to prepare you so the jurors can understand your perspective.”

More than anything, emotionally wrought people want just one thing – to be genuinely heard.

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.

How to Help Jurors Discredit the Lay Witness in Cross

We all cooperate more willingly with decisions we’ve had a hand in making. Jurors in trial are no different. Ask your questions in cross-examination in a way that allows the jurors to arrive at the unmistakable, inescapable, conclusion you want them to, rather than force the conclusion down their throats or risking a sympathetic answer from defense’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? 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’m a little nervous. I’m sure the police officer report is right.

Well, at this point, the jurors may very well believe the witness, since she’s being humble and apologetic and who isn’t nervous in court? 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.

How to Persuade With Jury Instructions

Jurors polled in focus groups and jury debriefings point out again and again that one of their greatest stumbling blocks at arriving to fair and just decisions is jurors' lack of understanding of the jury instructions and how those instructions should apply to the case. No matter how many times jurists attempt to make jury instructions more accessible to the ordinary person, the language remains obscure and convoluted. Lawyers must help jurors make sense of the language - and most importantly - help the jurors understand how these instructions fit with your case.

For example, take the common instruction regarding "negligence." Jurors often interpret the term as meaning deliberately, intentionally failing to do something one should have done. This is, after all, the most common use of the term in our everyday parlance. Unless clearly instructed that the intent to inflict harm is not a prerequisite of a finding for the plaintiff, the jurors, for example, might absolve a physician's incompetence because "the doctor didn't mean to hurt the patient."

In addition, even when jurors understand the words themselves, they can fail to see how the instruction applies to your case. What is obvious to you is often cryptic to jurors. Throughout the trial, relate testimony and evidence to the key terms of your jury instructions, and remind jurors at closing of how you accomplished this. A "bottom-line"-type chart will easily reinforce the connection.

It is a truism that the lawyer who provides the most clarity and logical explanation of a situation is the lawyer who will prevail. Although this is important throughout the trial, it is critical at during closing arguments. Improper handling of jury instructions can damage an otherwise wonderfully prepared and presented case.

Keep Clients Happy by Keeping Them In the Loop

Every case has its problems; some can be anticipated, others cannot. In their eagerness to maintain their credibility and be effective problem-solvers for their clients, lawyers frequently make the mistake of failing to inform clients of problems in an appropriate and effective manner, or of failing to inform them in timely fashion. Inevitably, you will find yourself at some point in time with the double headache of trying to appease an unpleasantly surprised and irritated client, and of trying to resolve the original problem.

Most clients need and want to be informed about the troublesome aspects of their case. Client-satisfaction surveys show that clients complain mostly that lawyers do not inform them about problems until the problems are so big they can no longer be ignored and that lawyers are unrealistic, usually minimizing problems and overestimating their ability to deal with them quickly and easily.

Clients dislike surprises, especially unpleasant ones. This holds true for small surprises, such as finding out at the last minute that a meeting was rescheduled, and for large surprises, such as suddenly realizing that the worst possible jury has just been impaneled for their trial.

Diminish the surprise factor by informing your clients of potential problems as soon as you begin working the case. Be upfront with your clients. Do your best to keep them in the loop as much as possible. Hopefully, you’ll avert most of those problems and your clients will be the more satisfied because of it.