Don’t Whine! Win Juror Votes with Witness “Can Do” Attitude (Part II, Defense)

 If plaintiff’s counsel’s task is to make sure the client/witness doesn’t alienate jurors with a purely “they done me wrong” victim mentality, defense’s is different.

“Don’t whine” might be better stated “Don’t defend,” which is mightily challenging for defendants on the stand, who generally believe they are unjustly accused. Yet the defendant who argues with opposing counsel, whose testimony is a litany of “Yes, buts” and who attempts to evade plaintiff’s counsel’s most basic questions, will not find favor with jurors.

Instead, explain to your defense witnesses that during cross, at best, they will only be able to give a qualified “yes” or “no” (as in “At that time, yes” or “In that situation, no”), and at all costs must not argue with opposing counsel (“That’s not how it was, I/they. . .”).

Reassure your witness by role-playing with them how direct will go, not just by telling them “Don’t worry, I’ll unscramble all that in direct.”

The “can do” attitude for defense witnesses comes through on direct, when the witness, if and as is appropriate, educates jurors to the witness’ role, their experience, their situation. An attitude of imparting information, of sharing an experience, will gain far more sympathy with jurors than witness belligerence.

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.

Understand Jurors’ Desire to Improve Things

Faced with a number of options as jurors are when deliberating a verdict, people will often make decisions by translating each option into how they would feel emotionally about the anticipated outcome. The option that yields the most preferred emotional outcome is more likely to be chosen.

For example, improving safety is both a practical and moral action. Any verdict that encourages companies to improve safety feels good. The thinking goes roughly like this: “If we can’t make them care about safety because it’s the right thing to do, maybe we can make them care about safety because it’s the more profitable thing to do.” Being virtuous, on the side of what is right for the common or greater good, makes it easier for jurors to justify huge verdicts. People can feel good about themselves making such a decision.

Plaintiff’s counsel can use the above to help get the desired outcome. Defense counsel can use an understanding of the above to considerably weaken such an argument by pointing out all through the case the many ways in which the company already attends to safety.

There are, after all, two sides to every coin.
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I recently had the pleasure of being interviewed on "Legal Talk Network," produced by the State Bar of Michigan. The subject was connecting with your clients. Here's the interview link:

https://legaltalknetwork.com/podcasts/state-bar-michigan-on-balance/2019/06/connecting-with-your-clients/