Best Practices for Trial Testimony - Part 1
Witness Testimony That Tips the Scales - Part 1 of 2
Much has been written about ensuring that your witness has basic competence: Answer the question that was asked; make eye contact; kill with kindness; and meet the jury where they are. Little, if any, has been written on achieving greatness. How do you make a witness truly memorable, to the point at which you tip the scales in your case toward a favorable outcome? How does a witness get to the point where people still talk about him or her when the case is over?
Understanding What Jurors Want
In order to provide the proper background, it will be helpful to review some basic tenets of jury psychology. The present observations are based on hundreds, if not thousands, of post-trial jury interviews in which the observations and sentiments of jurors are reported immediately following deliberations.
We start with the premise that jurors are fundamentally alienated; disenfranchised; and essentially “lost” as they start out. The entire process starts with receiving a summons in the mail – an unpleasant event to be sure. Things do not get much better from there: Their experiences then often consist of cancelling appointments, showing up in court, being told to wait for interminable lengths of time, filling out invasive questionnaires, and worrying all the time about being ripped out of the fabric of one’s life. Questions are frowned upon by unreceptive court officials and bailiffs, and the attorneys seem distant and uncaring.
In voir dire, jurors are typically intimidated and “sit on their hands” instead of divulging the critical information that is needed by counsel to make intelligent strikes; the result being a greater sense of alienation among the jurors and a heightened sense of skepticism toward the veracity of any claims made by counsel for both sides.
By the time jurors get to hear from witnesses, they are often deeply skeptical of both sides and yearning for someone to trust. This yearning is an exceptional opportunity as it is fertile ground for a witness to bond with jurors, yet most witnesses fail to take advantage.
Besides the issue of feeling lost and disenfranchised and needing someone to trust, a second vital aspect of jury psychology is that jurors are often overwhelmed by information and lack a cognitive framework in which to store and later retrieve the information.
Jurors do not deliberate based on what happens in the courtroom. They deliberate based on the contents of what they have stored and retained in memory and what is subsequently retrieved from memory later in the jury room.
We wish to note that in deliberations, jurors rarely determine their decisions by systematically analyzing the evidence in light of their legal instructions. The vast majority of deliberations involve moralistic evaluations of how the parties conducted themselves in an attempt by jurors to discover the ‘right’ decisions. But those stories of human conduct are not fully formed until the group deliberates, and without the framework upon which to organize and store facts, jurors find it very difficult to understand the significance and meaningfulness of the information they receive. If testimony is not encoded with a meaningful cognitive framework, it is simply not remembered. It cannot be utilized in deliberations, and it is just as effective as if it had never been presented at all.
What makes any piece of testimony memorable? Psychologists warn us repeatedly that memory does not operate like a camera or recording device. Things get into memory because they enter a portion of the brain that processes emotions. It is as though the “gateway” into long term memory is inaccessible to cortical areas of the brain and can only be entered through more primitive portions of the brain that involve subjective states. Jurors attend to, and commit to memory, events and facts that are both meaningfully linked to helping them fulfill their role as jurors AND paired with an emotional experience. A classic example is one we have seen too often where a corporate representative’s testimony is delivered in an arrogant and dismissive fashion and their company has been accused of recklessly disregarding the safety of the community. The demeanor of the witness seems to validate specific claims and the testimony becomes a significant and unforgettable moment in the trial.
Unexpected witness behavior on the stand can be positive as well, but it must be the result of the witness genuinely being committed to his or her message, for the benefit of the jury. For example, in a past personal injury case, our life care planner and valuation expert was accused under cross examination of incorrect calculations. He appeared horrified, pulled up his sleeve, and began right then and there to re-run his calculations utilizing his large, black plastic, calculator-watch. Examining counsel began to protest, and many of the jurors began laughing, at which point our witness looked up and apologized to the jurors themselves, stating, “Please forgive me folks. I don’t want to waste your time. It’s just that this is my job and I take accuracy very seriously. I need to make sure these numbers are correct before I can do anything else.” What was remarkable was that counsel had been referring to his “inaccurate calculations” in a general sense, and so the specific figures our witness re-calculated did turn out to be correct. It was quite a moment. In post-trial interviews, jurors expressed fondness and even affection for “the nerd who makes sure everything is correct.” None of the jurors could remember opposing counsel’s expert.
In both examples above there was an emotionally significant aspect for jurors or what psychologists call an “affective component”. When a powerful affective component is present, the chances of testimony being stored in memory and retrieved later skyrocket. If on the other hand, testimony is purely cerebral, cognitive, or analytical, with no subjective aspect to it, it is likely to dissolve into thin air.
So we know two things now: 1) Jurors are alienated and looking for someone to trust; and 2) For witness testimony to be memorable, an emotional connection needs to be made.
Concludes in part 2 next week.
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