Help Witnesses Deal With The Lie

 What frequently occurs as you prepare your witness (usually the client) for deposition or trial, is a resounding “That’s a lie!” to your best attempt to replicate what will be opposing counsel’s “Isn’t it true…” questions.

For all that it may be highly satisfying for said witness to roar “Lie!” it is not good juror strategy. Jurors are best persuaded when they come to the “Lie” conclusion on their own. Encourage your witness to respond to what they consider a “lie” with phrases such as “That is incorrect,” or “That’s not correct,” or “That’s not how I experienced it,” or some such.

Reassure your witness that at trial, the “lies” will be revealed for the jurors, for example through a “Chart of Inconsistencies.” As defense, for instance, you could bullet on a chart what the plaintiff told Dr. A, the different story he told Dr. B, and the yet more different tale he told at deposition. Or as plaintiff, you could bullet on a chart what defendant told the police, what was discovered in emails, what she swore to in interrogatories. Such a chart alone, since it references facts, has more impact on today’s jurors than your witness’s forceful expostulation “And he lied!!” ever could.

Once your witness understands that you will not let the “lies” go undiscovered, he or she will more readily accept your recommendation of “incorrect” as a valid alternative.

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

Win Juror Votes with Witness’ “Can Do” Attitude

When your primary witness is the plaintiff, said witness is likely to complain on the stand, elaborating a litany of  “He/she/they done me wrong.” Perfectly understandable; why else would your client have brought suit? However, to juror ears, an unending stream of complaints sounds like whining, and jurors don’t like whiners.

Jurors prefer people who, despite their misfortunes, are valiant, are giving their lives the best shot they can. No, your plaintiff client needn’t stiff-upper-lip it to where they maintain through gritted teeth/wired jaw; “All is well.” That isn’t their current reality. Instead, show that your client is valiant by making sure, during direct, to reveal the ways in which your client is doing the very best that they can to survive/heal/improve their situation despite horrendous odds.

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