As trial approaches we, as trial lawyers, begin considering what witnesses we will present at trial. Often times we spend too much time considering the information the witness can opine on without also considering other important factors such as the ability of the witness to communicate effectively. It may be that multiple witnesses are qualified to speak to the same set of facts. This is common for fact witnesses or expert witnesses. When this is the case you need to determine which witness’s testimony will sit best with the jurors. To this end you need to consider the level of charisma your witness brings to the table. Is this witness likeable? Is this witness boring? Trials can be less than entertaining to begin with so when possible go with a charismatic witness who will captivate the attention of the jurors. When considering the qualities of a witness, be sure to make sure that your witness communicates effectively. The last thing you want is a witness who can’t articulate clearly. If you are interviewing for an expert witness don’t get too caught up in considering witness credentials and qualifications. Most jurors aren’t persuaded by the number of degrees your expert has or how many publications he or she has written. Rather, focus on obtaining an expert who can communicate well with your jurors. This is someone who will not come off as arrogant on the stand. You want an expert that can relate to common folks. An expert who doesn’t rely on technical jargon is critical.
As you prepare for trial you will be initially interviewing most of these witnesses over the phone or in your office. Don’t assume that these witnesses will present the same in court as they do in your office. Most witnesses have never been in trial and almost never will they have experience speaking from the witness stand in front of a group of strangers, your jurors. Thus you need to get your potential witnesses into a formal setting which replicates trial as soon as possible. If you can obtain access to a court room or a moot court room then use this facility for your interviews and rehearsals. Put your potential witnesses up on the stand and then conduct mock examinations of these witnesses. Have another attorney conduct a cross examination of your witnesses. If you can seat some mock jurors do so. This will allow you to see how these potential witnesses carry themselves in near real trial conditions. After you see how your witnesses behaves in these conditions you can better assess which witnesses to use in trial and which witnesses it is best not to use.
The benefit of this exercise goes beyond witness selection. The exercise gives the witnesses who will later testify in trial a practice run under near real trial conditions. This is good practice for your witness as you want your witnesses to be as relaxed as possible when they finally take the stand in trial. After your witnesses have rehearsed their testimony in mock trial they will be much more comfortable for the process come trial. Finally, while conducting your mock direct and mock cross you will spot weaknesses in witness testimony. Better to spot these weaknesses in rehearsal than in trial. After you identify weaknesses you can take action to remedy these weaknesses. Advise your witness how to testify without presenting these weaknesses.
After you have your witnesses selected you can go on to consider the best way of presenting your witness testimony to your jurors. Jurors are generally half awake at best through most of trial and/or daydreaming. As a result you need to do everything in your power to make the information your witnesses present as digestible as possible. To this end you need to make it easy for jurors to get back on track with a witness’s testimony after the jurors have mentally wondered off for a period of time. The best way to do this is to create a strong structure for your examination and then to keep the jurors aware of your examination structure as trial progresses. To do this you need to break all testimony into what I call chapters. A chapter should be about one and only one issue. When you begin your chapter, whether it be on direct or cross examination, you need to tell the jurors the title of the chapter. Use headnotes to do this. Essentially, to do this you tell your witness right at the beginning of your chapter that you want to talk about “X subject”. By doing this, you are giving the witness direction as to what topic you are about to examine about but more importantly you are giving the jurors a headnote as to the upcoming topic so that they now are ready to perceive the upcoming information. If the jurors were just daydreaming and just brought their attention back to your direct or cross examination they will easily be able to get back on track and follow the witness’s testimony. Remember that you are a teacher before you are an advocate in trial.
In addition to using these headnotes, it is importantly to consistently remind your jurors of the point you are addressing, in the midst of each chapter examination. This is especially important for longer chapters where attention spans are more apt to wonder. In general, you want to keep your chapters short and sweet so as to not compromise the attention span of your jurors. That being said, there will inevitably be chapters which may take a lot of time to complete. You need to consistently remind your jurors throughout the course of these chapter examinations what the purpose of this particular chapter examination is. So if you are doing a chapter on liability for instance, you need to periodically phrase your questions in a way which reference the jurors to the point that you are ultimately addressing liability with this line of questioning. Whenever you ask a referencing question such as this, or a headnote, you can look at the jurors as you ask the question of the witness. In this way the jurors will pay particular attention to your headnote. Whenever you look at the jurors as you ask a witness a question you incorporate the jurors into the questioning process. The jurors feel more involved in the process when you do this and as a result they pay better attention. You want your jurors paying close attention anytime you use a headnote. If the jurors at least have an idea as to what the structure of your examination is then it becomes much easier for the jurors to fill in the gaps with the testimony which they do hear. On this same note, whenever you ask the witness to answer a question don’t direct the witness to tell you the as attorney the answer. Instead, tell the witness to “tell us” referring to you and the jurors at the same time. In this way you make the jurors feel important as they are in this process and you also develop a stronger bond with the jurors through this technique. When you say “tell us” you subtly let the jurors know that you feel that you are one of them. Jurors respect you for this. Whenever you can get away from being perceived as the lawyer in the courtroom do so.
Anytime you put a witness up for examination be sure to explain context before rushing into your examination. What I mean by this is that the jurors need to know how the witness fits into the case before they can properly interpret the witness’s testimony. Thus if you are putting a fact witness on the stand to testify to who your client was before and after the injury you should first question the witness as to his or her relationship with your client. When did they first meet one another? How did they meet? How often do they see each other and why? Once the jurors understand the foundation for the witness’s testimony they become much more receptive of the coming testimony.
Cross examination in a plaintiff’s injury trial can be tricky business. The really good trial lawyers can control the witness on cross without the jurors realizing that the witness is being controlled. This is especially important if the jurors see the witness as likeable or neutral. If the jurors feel disdain for the witness then you can let your control and contempt for the witness be more obvious. However, generally speaking, you don’t want to appear to be controlling of the witness. Jurors can typically relate to a witness with greater ease than they can relate to you the lawyer. Thus, as much as possible, be particularly friendly while conducting cross examination while still maintaining subtle control of your witness. To accomplish this try to focus more on provoking positive testimony than on impeaching your witness. Rarely is it that important to impeach a witness. Your focus on cross should be to force the hostile witness to tell the story of your case for you. Only impeach your witness when you need to do so for the purpose of keeping the witness on course with regard to telling the story of your case to the jurors. As always, don’t ask questions you don’t know the answer to. Don’t give a hostile witness an opportunity to provide direct examination testimony twice. Don’t ask a question of a witness that allows for a bad answer which you can’t impeach upon. Anytime you make the mistake of doing this you demonstrate weakness in yourself and thus weakness in your case.
A big part of maintaining witness control without showing your control comes from your ability to demonstrate good tone and body language while conducting cross. So when your witness gets hostile with you don’t resort to the same behavior with him. Remain friendly, take the higher ground and smile. Jurors will admire you for this course of conduct. When you do impeach the witness do so politely. After the third or fourth impeachment you can let a little resentment leak through as now the jurors are beginning to view the witness as a liar and thus likely have resentment for the witness as well. Whatever feelings and emotions the jurors possess at a given moment in trial you should demonstrate an emotional state that is one step less that of theirs. Never try to persuade the jurors by demonstrating an emotional state which is stronger than the emotional state the jurors are then feeling. If the jurors are at a level seven in terms of anger and resentment towards the defendant then you should be at a level five. Always let the jurors reach their own conclusions on their own. Be subtle in your advocacy.
Finally, with regard to objections, use them sparingly. Only use objections when they are necessary. Half of the time that objectionable testimony is elicited the jurors aren’t even paying attention to the testimony. As soon as you object the juror’s ears will perk up. The jurors see your objections as your attempt to hide evidence from them. You don’t want to be seen in this light. Thus don’t object to any questions unless it is crucial to your case that you do so. Before trial you should be putting on a thorough motion in limine so as to address any objectionable evidence which you anticipate the Defense putting forth in trial. Get a ruling on this evidence well in advance of trial, outside the presence of your jurors. Never object to form of a question as this is a waste of time, does you no good, and reduces your good image in the eyes of the jurors.