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 question, 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 their role, their experience, their situation. An attitude of imparting information, of sharing an experience, will gain far more sympathy with jurors than witness belligerence.

Stop Whining! Win Juror Votes with Witness “Can Do” Attitude (Part I, Plaintiff)

Your key witness is usually your client, or your client’s representative. If plaintiff, the witness is likely to complain, a litany of “He/she/they done me wrong.” Perfectly understandable, why else would your client be there in the first place! However, to juror ears, an unending stream of complaints sounds like whining, and jurors don’t like whiners.

What they like are people who, despite their misfortunes, are valiant, are giving it the best shot they can. This doesn’t mean your plaintiff client stiff-upper-lips it to where through gritted teeth/wired jaw they maintain “All is well,” but rather that you make sure, during direct, that you expose the ways in which your client is doing the very best that they can to survive/heal/improve things despite horrendous odds.

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

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.

How to Persuade With Jury Instructions

Jurors polled in focus groups and jury debriefings point out again and again that one of their greatest stumbling blocks at arriving to fair and just decisions is jurors' lack of understanding of the jury instructions and how those instructions should apply to the case. No matter how many times jurists attempt to make jury instructions more accessible to the ordinary person, the language remains obscure and convoluted. Lawyers must help jurors make sense of the language - and most importantly - help the jurors understand how these instructions fit with your case.

For example, take the common instruction regarding "negligence." Jurors often interpret the term as meaning deliberately, intentionally failing to do something one should have done. This is, after all, the most common use of the term in our everyday parlance. Unless clearly instructed that the intent to inflict harm is not a prerequisite of a finding for the plaintiff, the jurors, for example, might absolve a physician's incompetence because "the doctor didn't mean to hurt the patient."

In addition, even when jurors understand the words themselves, they can fail to see how the instruction applies to your case. What is obvious to you is often cryptic to jurors. Throughout the trial, relate testimony and evidence to the key terms of your jury instructions, and remind jurors at closing of how you accomplished this. A "bottom-line"-type chart will easily reinforce the connection.

It is a truism that the lawyer who provides the most clarity and logical explanation of a situation is the lawyer who will prevail. Although this is important throughout the trial, it is critical at during closing arguments. Improper handling of jury instructions can damage an otherwise wonderfully prepared and presented case.

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.

Keep Clients Happy by Keeping Them In the Loop

Every case has its problems; some can be anticipated, others cannot. In their eagerness to maintain their credibility and be effective problem-solvers for their clients, lawyers frequently make the mistake of failing to inform clients of problems in an appropriate and effective manner, or of failing to inform them in timely fashion. Inevitably, you will find yourself at some point in time with the double headache of trying to appease an unpleasantly surprised and irritated client, and of trying to resolve the original problem.

Most clients need and want to be informed about the troublesome aspects of their case. Client-satisfaction surveys show that clients complain mostly that lawyers do not inform them about problems until the problems are so big they can no longer be ignored and that lawyers are unrealistic, usually minimizing problems and overestimating their ability to deal with them quickly and easily.

Clients dislike surprises, especially unpleasant ones. This holds true for small surprises, such as finding out at the last minute that a meeting was rescheduled, and for large surprises, such as suddenly realizing that the worst possible jury has just been impaneled for their trial.

Diminish the surprise factor by informing your clients of potential problems as soon as you begin working the case. Be upfront with your clients. Do your best to keep them in the loop as much as possible. Hopefully, you’ll avert most of those problems and your clients will be the more satisfied because of it.