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.

Define the “How” and “Who” of Your Case in Story Form

Human beings across the globe are riveted by stories. Jurors are no different. Regardless of the nature of your case, find the story within it. The drier your case, the more important it is to do this.

            Be sure your story has elements of conflict or intrigue. Think of a good mystery or detective story: the story is either about “Who done it” or “How they did it” and sometimes both.

            For example, if your case theme is “greed,” tell the story of how the greed unfolded. Ask yourself continually “And then what happened?” Tell the story of the events to yourself by answering that question again and again. No matter how complex or business-oriented the case, there is always a sequence of events that can be told.

            Good stories have clearly defined heroes and villains. Describe the conflict between the parties as a human conflict between heroes and villains. Your “hero” may be flawed, but he or she must be presented as a hero if you want the jurors to root for your side.

            Show, for example, how your client is upholding a culturally approved goal or value. Even if your client is the victim, show not just that he/she was damaged, but that he or she upholds worth goals, such as the right to proper care, the right to expect safety in operating a vehicle/machinery. Too often we forget that jurors need someone to root for, not just someone to pity.

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.