A Simple Technique to Help Jurors Discredit a Lay Witness

When you’ve had a hand in making a decision, you’re that much more likely to go along with it. Jurors are no different. Questions in cross-examination that allow jurors to arrive at the unmistakable, inescapable, conclusion you want them to, are far more effective than ramming the conclusion down their throats or risking a sympathetic answer from opposing counsel’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? But 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 was a little nervous. I’m sure the police officer report is right.

The jurors may very well believe the witness, since she’s being humble and apologetic and who wouldn’t be nervous after witnessing an accident? 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.

Don’t Let Your Expert be Goaded into Defensiveness

There’s a world of difference between assertive expert testimony and defensive expert testimony, where your expert is essentially arguing with opposing counsel.

Now, your expert may believe he or she has every good reason to argue with opposing counsel, as in, opposing counsel is dead wrong. But arguing with opposing counsel is never a wise strategy, and often a road to discrediting your expert.     

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. Key words – a mantra, if you will. Your expert’s job is to clarify and educate. Period.

For example, opposing counsel asks, verging on the insulting: "Isn't it true that the validity of the tests you used is suspect?" Instead of answering defensively: "I personally examined the validity scales of every test," a clarifying and educating response might be (in a calm, neutral tone): "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 sidetracks opposing counsel (who was undoubtedly expecting the defensive response).

Helping your expert to see his/her way to clarifying and educating – rather than allowing themselves to be goaded into defensive responses –  inevitably paves the way to a more credible, juror-sympathetic response.

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I recently had the opportunity to write an article for California Litigation. "Out With The Old, In With The New—Try An Updated Approach To Jury Selection" appeared in the latest issue. Click here to view.

Can’t Live With Them, Can’t Live Without Them: Jurors

Trials would be so much easier if you didn’t have to deal with jurors. Jurors wander off mentally during your most crucial testimony, they’re distracted by a lawyer’s mannerisms, they’re irritated by an expert’s vocal tone, they disapprove of a witness’ attitude. Jurors misunderstand the law, making it up as they go along.  Jurors impose their own version of what’s right or wrong, what’s negligence, what should be the standard - be it of care, warning, safety or other. Jurors deliberate as a group, which introduces the whole notion of group dynamics, complicating the matter further. Need I go on?

But jurors must be dealt with, and more importantly, with how they come to the decisions they make. For the better you can determine or discern what impacts those decisions, the more likely you are to succeed at trial.

This is where intense, targeted use of the pre-trial focus group can be especially valuable. Instead of letting focus group “jurors” elect a foreperson and talk over each other to arrive at a consensual decision, use a facilitator to ask probing questions of each and every juror, to analyze how each juror arrives at their various conclusions, and to observe how group dynamics affect those conclusions. In addition, a facilitator can keep track of each juror’s opinion, which in turn is highly useful for jury selection.

Truly, in this as in many aspects of litigation, knowledge is power.