The Advantage You Need to Win Your Case

Most lawyers, when they prepare witnesses to testify, are understandably focused on the key substantive issues. They want to make sure the witness remembers important points. Great! But in so doing, lawyers often rely on their prepared questions, leaving little or no room for information not elicited by the lawyer’s direct questions.

As I prepare witnesses to testify, they disclose unexpected information that I then present to the lawyer--often to his/her surprise. Frequently this information has significant impact, either because it is helpful to a winning argument or it permits the lawyer to defuse potentially damaging issues. My ability to get such information is not because of any great magic done by trial consultants, it’s simply the result of a client-centered witness prep approach. Such critical information is just as available to the lawyer and readily obtainable by asking client-centered open-ended questions.

You see, a witness is highly unlikely to come up spontaneously and voluntarily with all you need to know, unless prompted with an open-ended question. Why?

            1) The client may feel obligated to answer your direct question directly

            2) Your direct question may only elicit an incomplete description of the situation

Facilitate your client's giving you all the information you need by asking client-centered open-ended questions. These encourage the client to tell a story, or describe an event, feeling or situation however the client wishes. Such questions generally start with the words “what” or “how” as in; “What about X concerned you?” “How did you come to Y?” A good follow up is – always –  “Tell me more.”

Ask such questions and your client may very well give you the advantage you need to win your case.

The Jury and GenXers

GenXers are getting older. They are the generation bumping up against the Boomers who are slowly but surely on their way out. Which means you are seeing more of them in the jury box – individuals born between roughly 1961 and 1981, who are now in their late 30’s to mid 50’s. They are no longer entry-level hires, they’ve moved up into managerial or supervisor ranks, or commonly, headed off into entrepreneurial ventures of all types and sizes.

Why does this matter to you? 

GenXers are still among the more skeptical, if not downright cynical, generation. Thus, when it comes to liability, GenXer skepticism tends to favor defense because GenXers aren’t particularly emotionally swayed. They require more data, more evidence and the science behind it in order to find liability.

Liability is a major obstacle for plaintiff’s attorney when arguing in front of GenXers, so if your jury box is loaded with GenXers, be sure to back up your every argument with as much documented evidence as possible.

The downside for defense is, once GenXers are convinced of liability--especially GenXers in their late 30s and 40s--they will award higher damages than any other generational group. GenXers believe that people should be held accountable for their own actions. Awarding substantial damages is a way of holding people accountable.

The solution is the same as for plaintiff--but in the opposite direction. As defense, do everything you can to back up your arguments countering liability with documented, “hard” evidence, so as not to be hit with a big award.

Vocal Tone Matters During Voire Dire

Vocal tone matters, not just when you’re delivering your opening/closing or in questioning witnesses, but also in voir dire. Voir dire is when you create your first impression with what will be your jury panel. How you speak to prospective jurors is every bit as important as what you say.

"Well, the lawyer asked OK questions and all, but boy was he/she cold!" "I'm not a kid, you know, I didn't appreciate getting a morality lesson from the lawyer." These are the type of comments heard in jury debriefings when an attorney negated the good questions asked in voir dire by using an authoritarian or parental vocal tone. Jurors like to be guided, not told what to do.

Ask jurors whether they can be, for example, "fair to both sides," don't demand it of them. Think of jurors as fellow-travelers, about to embark on an expedition with you, not as the enemy. As best you can, use a conversational pace as you go through the intricate dance of question-response with prospective jurors. Keep your voice modulated for warmth and directness. Be sincere. Ask questions as if you really want to know the answer, not as if you're dictating to the prospective juror what he or she must think.