The Eyes Have It: Does Your Witness Know How to Look at Jurors?

 

Telling your witness to look at the jurors during their testimony without teaching them how to do so can be fatal to your case. 

A scared, anxious witness may only dare a quick terrified glance mid-sentence at the jurors, which confirms in the jurors’ minds that yes, this witness is surely hiding something. So much for the witness’s credibility.

Or a witness may attempt to “duke it out” during cross by glaring at the jurors during their response, rather than focusing on opposing counsel. This does not benefit your case.

Help your witness look at the jury in a way that enhances their credibility even as it satisfies jurors’ need to see the witness’s eyes to determine veracity. Which, as many of us will remember, is why our mothers would say: “Look me in the eyes when you’re talking to me!”

During direct, suggest that your witness, when they have a response of a couple of sentences or more, begin their answer by looking at you, then turn out to the jurors and look at different jurors during the bulk of their response, to conclude their response by turning back to you during the last few words. If the witness can angle their body very slightly towards the jury box, then turning out towards the jurors is smoother. All this sounds easy, and certainly becomes easy, but only with practice.

I have found video-recorded role-play to be the most effective way to help witnesses get comfortable with turning to the jurors. It’s best to do this during direct, because during cross, the witness will rarely be given an opportunity to respond with more than a few words, and focusing on opposing counsel is their primary responsibility at that point.

“Look at the jurors,” yes, is a critical and essential instruction, but how it is done can make all the difference to your case.

 

Who Wants A Perceived Liar On The Stand? Not You!

 

People aren’t very good at detecting liars. Studies show that people’s hit rate for detecting lies (54%) is slightly above pure chance (50%), which is good news for liars, but bad news for you in the courtroom.

Why? Because people tend to pay attention to certain cues to determine if someone is lying, but these cues may mean something entirely different.

Take the “vocal immediacy” cue, for example. Vocal immediacy is the directness with which someone responds to a question. The more roundabout or vague the response, the more likely jurors will figure your witness is lying. However, your witness may simply be thinking out loud, which sounds roundabout. Or your witness may not know what to say, and rather than answer “I don’t know,” or “I don’t understand the question” may resort to a vague mulling which again, looks like lying.

Another cue is “uncooperativeness.” Jurors commonly assume that a witness being uncooperative is hiding something, or being dishonest. Yet often an uncooperative witness is one who argues with opposing counsel rather than answer the question asked, or attempts to force their view of the facts into every response, rather than let their attorney do the litigating.

Your best witness—among other things—responds directly to the question asked, and leaves the lawyering to the lawyer.

The best tool to help your witnesses get to jury-worthy credibility is to use videotaped role-play in preparing them to testify. You can’t afford to let your witnesses get away with behaviors that could be mistaken by the jurors as those of a liar.

The Power Sit

 

Now that we are back in the courtroom as opposed to our above-the-waist-only position on Zoom, our witnesses/experts’ body language is once again relevant.

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 sit this way, demonstrating good posture, are deemed more credible by jurors.

How does this work?

         - 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 in our society, those who maintain good posture are considered worthy of respect.

It then stands to reason, that with just a little attention to your own posture, whether sitting at counsel table, standing at the podium or in the well, you can be an even more powerful and convincing litigator. Every little bit helps when it comes to winning your case.