Toward More Effective Witnesses

by Art Raedeke

It comes as no surprise that witnesses have a profound impact on the outcome of trials. What is surprising is that witnesses often go into trial woefully unprepared from the standpoint of effective communication with jurors. Jurors typically react to trial presentations on a very personal level. They tend to reduce even the most complex cases to a simple "morality play", and they draw conclusions about the outcome in large part based on their reactions to the "players" they see at trial. How key witnesses come across to jurors goes a long way to proving or disproving claims made by the litigants. For example, post trial interviews with jurors in a sexual harassment case revealed that the employees who were accused of the offending behavior impressed jurors as the type of people who probably would harass a co-worker. As one juror put it, "Just by the way they testified, you could tell they didn't have any respect for (the plaintiff). With (one employee), it was just his actions on the stand. He was getting upset just answering. With the others it was just their body language and the expressions on their faces." In an insurance bad faith case, company representatives came across as defensive and uncooperative, suggesting that the insurer probably had treated the client in bad faith. These same witnesses, however, after getting some training in how to communicate effectively with jurors, made very favorable impressions on jurors in another case in which the insurer prevailed.

Because of the enormous impact witnesses have at trial, it is imperative to make sure your "players" are assets to the case. Here are a few ways to increase the effectiveness of your witnesses at trial.

Choose witnesses according to the "audience"

When you have a choice about whom to put on the stand, pick someone who will play well to the sensibilities of your particular jury. Evaluate the character of the jury pool and assess your witnesses in that light. Make sure the witness' background and personality will be accepted by jurors so that they are receptive to the witness' message. Witnesses who play well in one venue, may be much less persuasive in another. One such witness did very well in a trial in an urban venue, but rubbed jurors the wrong way in a rural California Superior Court trial. The urban jurors described the expert as "funny" and a "character" and found him to be a very credible witness. One juror commented, "He really knew his stuff. He got excited and seemed like he was telling the truth. As a juror, you base everything on the projection of the witnesses, and everybody believed him." In the rural venue, however, this same witness, presenting essentially the same testimony, elicited comments like: "He was way over-paid. He thought he knew a lot, but didn't help at all. He was just a showboat." "To me he was tooting his own horn and didn't add a lot." "I don't remember much about him except that he had a driver and made a lot of money." Disparate reactions like these indicate the importance of making sure your witnesses "fit" the venue.

Position your witnesses

Jurors have a difficult job to do. In many cases they hear complicated and arcane information for the first time and are then asked make very weighty judgments quite quickly. In this context witness testimony is much more effective if it is "positioned" by trial counsel so that jurors understand where the testimony fits into the overall case story and what conclusions they are supposed to draw from the witness. This positioning can begin with opening statements. From the outset, jurors should be given a trial framework, based on case themes, into which each element of the trial presentation can be built. If jurors understand the structure of your case, they are much more likely to see how each witness fits into the overall story you are telling.

Not only is it important that jurors understand where each witness fits into the case story, each witness should be aware of the part of the story he or she is to tell and what key messages the testimony needs to convey. When witnesses are aware of your trial framework and case themes, they can use those themes to reinforce and clue jurors into the conclusions they should draw from the testimony. If testimony is positioned properly, it makes the jurors' job much easier and increases the likelihood they will draw the desired conclusions.

Prepare your witnesses for the jury

In addition to the preparation witnesses get regarding what they are going to say in their testimony, they should be instructed as to how to best present their testimony. This means informing witnesses about the jury's perspective at trial and what can be done to make sure jurors listen to and accept what the witness has to say. Providing witnesses with this preparation makes them more comfortable with their role at trial and enhances their effectiveness on the stand.

The first thing witnesses should understand is the nature of their audience. Jurors come from diverse backgrounds and bring with them a wide range of experiences. For most it is their first time as a juror and they find the experience stressful and intimidating. They take their assignment very seriously, however, and want to do a good job -- they want to make a fair decision. Jurors look at witnesses as sources of information who will help them decide the case, and they quickly try to size-up each witness' credibility. Jurors try to determine whether the witness can be believed and whether he or she is trying to help jurors do their job. To be effective, witnesses must convince jurors that they are both credible and trying to give jurors the information they need. Witnesses need to show jurors that, even if they are nervous, they want to tell jurors their part of the story. Jurors must perceive the witness as someone who is interested in them and who wants the jurors to understand and believe what he or she is saying.

Witnesses should recognize that the jury is their primary audience and it is jurors with whom the witness must quickly develop a rapport. Witnesses need to look the jurors in the eye and present their testimony directly to them. Post-trial interviews with jurors have regularly confirmed that when witnesses do not make good eye contact with jurors, it creates the impression that the witness is not interested in jurors or is uncomfortable with what he or she has to say. Body language is also important to developing a good rapport with jurors. Physical presentation must reinforce the perception of the witness as confident, open and comfortable, and should be consistent between direct and cross-examination. Physically "closing down" when being questioned by opposing counsel can be very damaging to a witness' credibility.

Another critical element of effective communication with the jury is the way in which questions are answered. How an answer is given is sometimes as important as what is said. Witnesses must listen carefully to questions and should not anticipate what the attorney will ask, even on direct. It is often dangerous and detrimental for the witness to try to predict where a line of questioning might lead. When a witness is too worried about where the questioning is going, he or she often becomes unnecessarily defensive about questions to which jurors expect clear and direct answers. Because they are afraid an answer may set-up a more difficult question, witnesses sometimes deny the obvious or quibble about things jurors expect the witness to know. Doing so can be very damaging to the witness' overall credibility, as was evident from a trial juror's comments about witnesses in a wrongful death case: "The defense must have told all its witnesses to be very difficult. When their own attorneys questioned them they were clear, articulate and charming, but when the plaintiffs asked questions, they wouldn't agree that the sky is blue."

Witnesses must also make sure they fully understand the question being asked and if they do not, should ask for clarification. If the witness does not know what is being asked, chances are the jury doesn't either and they will appreciate the witness asking for clarification. Having a question repeated or clarified just to buy time to think over the answer does not sit well with jurors, however. One juror was annoyed that a witness "didn't want to cooperate when being cross- examined. It seemed like every other question he asked to have repeated. That got boring and out of hand."

Once the witness understands the question, he or she should answer it as directly and briefly as possible. Witnesses should not volunteer more information than called for by the question. A trial juror made this point clear in describing an expert witness: "He was a little talkative. He lost the jurors and should have stuck to what they asked him. I had to really listen for the answer to the question before he went on and lost me completely. He gave too much information." On direct, if the attorney wants more information, he or she can ask follow-up questions. On cross, the witness should be responsive, but should keep answers as focused as possible. Witnesses should be told that it is not necessary to qualify and expand on each answer on cross, even at the risk of leaving false or incomplete impressions. Let them know that re-direct can be used to correct any harmful impressions that may have been left from cross-examination.

Since jurors are generally confrontation-averse, they do not react well to argumentative witnesses. As one juror put it: "(The witness) didn't come across well. He got emotional and red-faced when cornered on cross. He was hostile when a smooth demeanor would have been better." A much better approach is to treat the questioning attorney politely and with respect. If questioning gets aggressive or hostile, jurors are likely to sympathize with a witness who maintains his or her decorum. That is not to say that testimony should be devoid of emotion or appropriate righteous indignation, however. Emotion should just not become combative or degenerate into personal attacks. Instead, the witness should be firm and confident in his or her answers so that jurors are prompted to conclude that each response is the "right" answer to the question.

Witnesses who are unfamiliar with or uncomfortable about testifying may benefit from a Witness Preparation Workshop. These workshops inform witnesses about what the trial experience is like for jurors and how witnesses can develop a rapport with their audience. They address techniques for answering questions on direct and cross examination that increase jurors' attention and receptivity to the testimony. Instruction about effective non-verbal communication is also provided. The workshops generally include mock direct and cross examination of the witness which is sometimes used to critique witness performance.

Regardless of how witnesses are prepared for trial, it is critical that they recognize who their primary audience is, what part of the case story they are to tell and how they can most effectively get that message across to jurors. The outcome of the case may depend on it.