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.