Conduct Direct and Cross to Your Advantage: Explore Jurors’ Potential Questions

Among the many objectives you have during direct and cross examinations is that of asking the questions the jurors would like to have answered. It’s easy to lose sight of the fact that you and opposing counsel are the jurors’ only way to find out any and all information.

Areas you or opposing counsel do not explore remain forever unknown to the jurors. The more you explore areas to the jurors’ satisfaction, the less opposing counsel’s impact.

“Inquiring minds want to know” is a good catch-phrase to borrow from the tabloids and keep in mind as you plan your direct and cross of various witnesses. At some point in your preparatory process, divorce yourself as much as you can from your primary role of advocate, and sit mentally in the jury box.

Review your questions and how you think the witnesses will answer. Ask yourself: “If I were I juror, what else might I want to know about this issue? What’s left unanswered?” Enlist the help of others, preferably non-lawyers, in this exercise, to help you figure out how to make sure the jurors get as many as possible of their potential questions answered.

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A Winning Tip Dr. Nelson recently consulted on:

Congratulations to Dan Hoven and Carlo Canty of Browning, Kaleczyc, Berry & Hoven, P.C. (Helena, Montana) for their successful 12-0 Defense Verdict in a medical malpractice case against a general surgeon alleging negligent injury of a vagal nerve in a unnecessary Nissen fundoplication surgery causing disabling gastrointestinal symptoms of bloating, pain, diarrhea and constipation, in addition to negligent removal of a perfectly normal gall bladder. Plaintiff sought approximately $2,225,000 in damages for loss of earning capacity, loss of established course of life and pain and suffering. 

Use Jurors’ Unrelenting Scrutiny To Your Advantage

The entire time you’re in Court, the jurors are watching you, trying to figure out from your expressions and body language what you think of what’s going on at any given moment, and how you are doing.

Use this unrelenting scrutiny to your advantage.

For example, if you want to let the jurors know you think a witness is being less than candid, raise an eyebrow and look quizzically at the witness, as in “Oh, really?!” Hold that expression for a moment or two while the witness is responding, and then look down briefly, frowning, as in “I don’t believe what I’m hearing.” Which is precisely the conclusion you want the jurors to draw.

To dismiss a witness’s testimony as less than credible, walk a few steps away from the witness during his or her testimony, thereby removing your eye focus from the witness. It’s as if you were saying, “I can’t stand here and listen to this nonsense.”

To put a witness on the spot, stand totally still in front of the witness, resist the urge to make any acknowledging head nods, and maintain steady, almost rigid eye contact, thus effectively pinning the witness down with your look.

To give value to a witness, be that their person and/or their testimony, stand fairly close to the witness in a natural, somewhat relaxed posture, maintain good eye contact, and nod approvingly.

Be conscious of your body language and expressions. They are yet another valuable tool in your litigation tool-kit.

Two Easy Tips For Persuasive Expert Testimony

Experts are experts in their subject matter, but not necessarily experts at testifying, as many a lawyer has found out at trial, much to his/her dismay.

One way to make sure your expert testifies in a way that will persuade the jurors, is to have your expert formulate "umbrella statements." These are statements that give an overview of what is to follow.

For example, an expert might begin with the umbrella statement "Upon examination, I found significant differences between X and Y," rather than launching immediately into a description of the features of X, not mentioning Y until 10 minutes later, and not discussing the differences between the two until another 10 minutes has elapsed. Jurors need to be guided. Without the benefit of an "umbrella statement," jurors don't know what they should be listening for. Your expert's excellent points may be lost in the clutter.

Another way is to have your experts bottom line key points as they conclude a given

segment of testimony. Phrases such as "To sum it all up," or "What this means is" are helpful in introducing a concise, condensed, easy-to-remember version of  the critical point just made.

With a jury, clarity and easy-to-grasp concepts/points make for the best testimony.