Tailor Your Approach to the Deponent Based on Choice, Not Habit

How you approach a witness in deposition has everything to do with how they are likely to respond.

If you adopt an aggressive style, you will probably be met with one of two possible responses: either the deponent will fight back, getting hostile and defensive, or the deponent will melt into confusion, “I don’t know-s,” and tears.

If you adopt a conciliatory, more friendly approach, you will usually elicit more narrative and thus more information.

If you adopt a neutral, fact-finding approach, you will probably receive informative responses, but not much elaboration or narrative.

Now, depending on your objective, one or the other of these approaches will be most appropriate. Sometimes you can choose to change approaches in mid-stream, such as starting out neutral, gently morphing into friendly, only to become more aggressive down the road.

What’s important is less the approach you choose, as that it be a choice. Too often, lawyers get in the habit of taking a deposition a certain way, and always do so. That’s great, but there may be a more effective approach available than your habitual one, given the nature of the witness and your objective.

Make your choice conscious, and you’ll be that much more successful.

Neglect Jurors’ Need for “What Happened?” at Your Peril

Your primary focus in preparing for trial is inevitably the issues in the case. You may not focus much on “What will the jurors want to know about this case?” because you figure they’ll want to know about--the issues. Of course they will! But they’ll want a lot more than that.

Jurors want enough information to be able to construct a coherent story of what happened. This is true regardless of the type of case, and whether you’re defense or plaintiff. If you don’t give that information to them, they’ll make it up for themselves. That fact alone should be enough to give you nightmares.

For example, in an accident case involving any kind of vehicle, jurors want to know the speed of the vehicle/s, whether the driver/s, pedestrian or whoever else was involved had been drinking or taking drugs, and the driving records of the parties involved.

Jurors want to know these factors regardless of whether speed, drugs or driving records have anything to do with the case. It’s as if the jurors' common sense demands that these facts be known before they can look at other factors. Don’t for a moment assume that if alcohol, for example, is not at issue, that simply not mentioning it is sufficient for the jurors. Hardly! To the degree that the law allows, these factors and other "common sense" issues should be made known.

From business cases to medical malpractice and everything in between, jurors want information that allows them to reconstruct “what happened,” even if liability is already stipulated. And in the absence of having evidence of “what happened,” which occurs frequently, at the very least your expert should have a strong opinion as to the most likely “what happened.” 

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.

Visuals – Cut to the Chase

The importance of visuals in presenting your case to the jury is well known, and increasingly trumpeted, as ours becomes a society of glowing screens, large and small. As you decide which visuals, what part of the story they are to tell, and how best to design your visuals accordingly, one aspect is often missed: pace.
It’s easy to forget pace in your ardent desire to communicate as much as you can with the assist of visuals. But here’s the thing: look at any primetime dramatic TV show, and you’ll quickly realize that images succeed each other at lightening speed until a dramatic moment requires everything to slow down, so the audience can absorb this critical sequence. Then the pace picks up again.

So too with your visuals. Cut to the chase. Make your visuals easy to see, uncluttered, highlighting one important fact or bit of testimony, so that the jurors aren’t hunting through your visual for that important fact, having to parse through lots of relatively less important items. The pace of presenting such clear visuals can be quick, because that’s what jurors are used to from the media. Then, when you hit that one piece of evidence critical to your case, you can slow down and take your time with it.

The jurors, having not been bored or confused with your set-up or establishing visuals, will be better able and willing to give their full attention to the crux of your case.

Juror’s Search for Understanding Bumps Her Off Panel

Recently, a juror in the Ronald Woodard murder trial was removed from the panel after she brought to court a glossary of legal terms she found online. Throughout the trial Jackson County Circuit Judge John McBain had cautioned jurors not to research or read anything in relation to the case, not even to look up a term in the dictionary.

What is wrong with this picture? Why should the juror be penalized for something that is essentially the lawyers' failing – for whatever reason – to do their job in regards to the jurors? Perhaps the lawyers indeed defined their terms adequately in this case, and the juror was being compulsive, but in truth, I have found repeatedly that lawyers forget how much of their communication is legalese, and how many words have a different meaning in ordinary conversation.

Take negligence, for example. To many lay persons, being negligent has an aspect of deliberateness about it. You know you should put your seat belt on, but you don’t, you’re negligent. So if the surgeon didn’t mean to leave the sponge in the person, it’s probably not negligence. Another example: Lawyers refer to memorializing things. To a lay person, that often means some kind of memorial was created, like a statue or special edict. To opine is frequently confused with “to pine” as in “lament.” I could go on . . .

Bottom line: define your terms, use words your fifteen year old can easily understand and use in a sentence. The jurors will not only thank you for it, they’re more likely to favor your interpretation of the case. After all, it’s the one they understood.

The Power Sit – Science Matches Experience

In working with witnesses, I developed the “Power Sit” – my shorthand for “Please sit up straight, your back against the back of the chair, with your head level, arms on the arms of the chair,” because experience showed me that witnesses who sat this way, demonstrating good posture, were deemed more credible by jurors.

Now, a study reported recently by The Economist (Jan 13, 2011) reveals that good posture has even greater impact. The psychologists who conducted the study concluded that “Those who walk around with their heads held high not only get the respect of others, they seem also to respect themselves.”

The significance of this for trial work is two-fold:
- The “Power Sit” bolsters your witnesses’ self-confidence and self-esteem, a consequence of self-respect. Your witnesses are more likely to give credible testimony because they feel better about themselves.
- Your witnesses are more likely to be perceived by jurors as credible and persuasive, because those who maintain good posture are considered worthy of respect.

When you apply the same information to your own behavior, with just a little attention to your posture, both when sitting at counsel table and when standing at the podium or in the well, you can be a more powerful and convincing litigator.

And you’ll feel that much better about yourself, to boot.

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.

Keep Experts Cool for a Credible Response

Experts can shine or be demolished during cross. An easy way for opposing counsel to destroy otherwise sterling expert testimony is to goad the expert into responding defensively by asking questions in an insulting or outright attacking tone.

Your experts do best if they don't consider the question an attack (regardless of vocal tone), but rather as an opportunity to further clarify and educate. Follow this advice and your expert won't feel tempted to negate or fight everything opposing counsel says. Encourage your expert to simply listen attentively to the content of the question, allowing he or she to answer in ways that may surprise opposing counsel and help your expert maintain a positive footing.

For example, opposing counsel asks, verging on the insulting: "Isn't it true that the validity of the psychological tests you gave is suspect?" Instead of answering defensively: "I personally examined the validity scales of every test," a more constructive answer might be "Certainly, validity is always a primary concern, as are reliability, standardization and other such issues." Using the question to clarify an issue, the expert scores with the jurors and in the process sidetracked opposing counsel (who was undoubtedly expecting the defensive response).

Here is another example of the type of question which tends to put experts on the defensive: "Isn't it true that Drs. X, Y and Z have written that the test you used to come to your conclusions is subjective and unreliable?" Experts who get angry and defensive in response to this line of questioning do not do well with jurors. Suggest that your expert concede what is indefensible, and support that which is: "Indeed, these doctors say that under certain circumstances – unlike the circumstances in this case – this test may be of limited value." Opposing counsel is now obliged to ask your expert about those "certain circumstances," (or if not, you can on re-direct) and your expert can reiterate how this test has value in this particular circumstance.

Keeping expert cool inevitably paves the way to a more credible response.

Today's Jurors’ Mixed Feelings About Corporations

National research (Harris Interactive, 2009) shows that a majority of Americans place “a lot” of blame on banks (76%), Wall Street (57%) and big business (55%). In these difficult and trying times, juror attitudes are changing. It is inevitable that among your jurors there will be those who are recently un-employed, some for the first time in their work-lives, and those who have lost savings, homes, opportunities, even careers.

This has corporate defendants very concerned, for if corporations have often fared poorly in jurors’ eyes, they are doing even worse now. However, this is hardly the time for plaintiff’s counsel to cry “Huzzah,” for along with the public’s disdain for corporate greed and malfaisance, comes the public’s disapproval of any case that smacks of the frivolous or the not “truly madly deeply” justified, especially if plaintiff’s win would mean a cut in jobs for employees.

At least some of the jurors in any given panel understand the consequence of large awards. Don’t forget that among the currently unemployed are many who were in the upper-middle white collar strata of the workforce, and that these unemployed are able to educate their less-informed fellow jurors on the realities of what happens to employees, their jobs, wages and benefits, when corporations are hit with huge verdicts.

Whether representing plaintiff or defendant, keep in mind the current composition of your jury pool and current juror attitudes. This will go far in helping you win your case.

Recession Revelations & Your Jurors

The continuing recession and revelations it brings about corporate and other wrong-doing – be it excesses, or cavalier squandering of the ordinary citizen’s financial well-being – have significantly altered juror attitudes. Jurors are no longer taking the position of “What the heck, everybody does it,” rather they are holding lawyers and all parties in the action to a higher standard. For example, taking advantage of others by virtue of contractual technicalities and loopholes is less viewed as a flaky but ordinary way of operating in the world, and more as an unacceptable moral failing. Issues of abandonment and betrayal are rarely excused. Turning one’s back on others and leaving them in a helpless or difficult situation, is virtually always unacceptable.

Jurors are favoring lawyers who express sincerity and genuine belief in their client’s cause, are well prepared, and respectful towards the legal process and all involved. Jurors are less convinced by lawyers who focus on the “letter of the law” and more persuaded by those who incorporate the “spirit of the law” into their arguments. Jurors are more attuned to anything that smacks of a lawyer’s attempt to pull the wool over their eyes, and likely to quickly discredit that lawyer and his or her arguments.

Jurors appear to be more favorable towards the lawyer who admits to problem areas of a case, and then proceeds to give common-sense, believable reasons for those actions. Jurors do not appear to be looking for perfection, or favoring only those “without sin,” but rather for honesty and other “straight-shooter” type qualities, which are quintessential American ideals - sorely lacking these past few years in many a juror’s mind.