Win Juror Votes with Witness’ “Can Do” Attitude

When your primary witness is the plaintiff, said witness is likely to complain on the stand, elaborating a litany of  “He/she/they done me wrong.” Perfectly understandable; why else would your client have brought suit? However, to juror ears, an unending stream of complaints sounds like whining, and jurors don’t like whiners.

Jurors prefer people who, despite their misfortunes, are valiant, are giving their lives the best shot they can. No, your plaintiff client needn’t stiff-upper-lip it to where they maintain through gritted teeth/wired jaw; “All is well.” That isn’t their current reality. Instead, show that your client is valiant by making sure, during direct, to reveal the ways in which your client is doing the very best that they can to survive/heal/improve their situation despite horrendous odds.

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

A Case Clincher Question: “Tell me more!”

Although time-consuming, and therefore considered onerous by many attorneys, open-ended questions asked during client interviews can often give you “case-clincher” nuggets.

For example, in the course of asking a client open-ended questions about how she claimed a poorly executed knee surgery had affected her life, resulting in one leg being an inch shorter than the other, the client made predictable statements such as; “I can’t walk for more than 10 minutes at a time. I limp. I have to have special shoes made.” The attorney asked, almost offhand, thinking the interview was over, “Anything else?” and his client blurted out “I can’t carry my baby.” Her “baby” statement became the clincher that won a far greater award than would otherwise have occurred, according to post-trial juror questioning.

A great reason to ask “Anything else?” or to inquire, “Tell me more,” and to listen carefully!

Help Your Witness Past an Angry Knee-Jerk Response

Witnesses may be angry for a variety of reasons. Regardless, an angry witness rarely testifies convincingly at deposition or trial. When dealing with such a witness, start by acknowledging that your witness’s anger is understandable and legitimate, but unfortunately, detrimental to effective testimony. Remind your witness that you are the advocate, ready, willing and able to be righteously indignant, angry or whatever else is appropriate when it is appropriate. Then work with your witness to assure solid testimony.

With the aid of video-taped role play, drill your witness on the critical “Answer the question asked.” The higher the emotional stakes, the more important it is for your witness to really listen to the question, and respond appropriately and dispassionately. As best you can, replicate the stress of cross-examination to help your witness learn how to maintain their composure during deposition or trial.

One way to do that is via the “breathe” technique, whereby your witness learns to breathe, as in take a deep breath, before attempting to answer an emotionally charged question. If necessary, to then ask to have the question repeated, which again, buys the witness time to settle his/her emotions, such that the response is more reasoned and level-headed.