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Witness preparation
The source from which testimony comes is often as important as the testimony itself. Gold rings in pigs’ snouts, the adage goes, diminish gold’s beauty. In much the same way, excellent testimony may be diminished by an unseemly witness. It is worth spending time to consider how a witness will strike a jury, and what can be done to improve his or her self-presentation.
In one of our cases, the CEO of a major organization was to spend a large portion of each day at the defense table, thereby making clear the magnitude of the “stakes” of the case of his company. Ultimately, he would testify, and upon his testimony a considerable portion of the outcome rested. The CEO was himself a well-spoken, enormously handsome and downright dashing man—in many ways, the ideal witness. Yet, his sexy demeanor and flashy manner of dress risked turning some jurors against him, particularly those who had marital difficulties or just adversely affected by the “persona” he projected. The attorneys recognized this, but were at a loss to raise the matter. Trial Analysis Group consultants successfully took on the task of convincing the CEO to wear a prominent wedding band (he was, in fact, married), to accept a shorter haircut, to wear more conservative clothes and a less dazzling wristwatch, and to project an altogether less dashing image. The jury loved him.
Witness liabilities, of course, are not limited to matters of appearance or dress. Often a key witnesses’ manner can be needlessly abrupt and seemingly discourteous. Some witnesses mumble. Others appear arrogant, or too-practiced and glib; still others sour and dour. All of these are characteristics that can be (and have been) greatly and easily altered.
Real life offers little preparation for the well-crafted cross-examination, and the courtroom has the capacity to intimidate the most fearless of folk. We can work with witnesses intensively; we reduce their anxieties about testifying by desensitizing them to this novel situation. In addition, we work with witnesses so they may best address those pesky “bad facts” that inevitably present themselves in complex litigation. No matter how innately confidant and likeable witnesses may appear, they gain by having some practice before presenting to a judge and jury.
Sometimes, of course, one cannot (to quote another adage with a porcine reference) “make a silk purse from a sow’s ear.” Sometimes one must work with what one has, and try to mitigate the deficiencies, or better still, to turn them to one’s advantage. In one memorable retrial of a high technology case, we were confronted with key witness whose testimony was vital to our contentions, but who could not be dissuaded from digressing into long lectures rather than answering questions. We knew from the original trial that he had created a terrible impression on jurors, even when he answered questions posed by the attorney who had called him as a witness, to say nothing of how he had fared during cross-examination by the other side.
Confronted with this dilemma we did two things. First we made sure that our attorney did some “inoculation” of the jury by introducing this witness to the jury as a “real character” and a “pioneer” in computer technology—a former college teacher (which he was) who loves to talk about the design of computer chips, so much so that he sometimes forgets he is not in a classroom and is in a courtroom testifying in a case that is of vital importance to his employer.
Second, we suggested to our witness that he first answer cross-examination questions with a simple “yes”, “no” or, as he often preferred, by saying simply that the question couldn’t be answered in simple “yes” or “no” terms. Then, we instructed him, he could add “would you like me to explain?”, thus giving opposing counsel the choice of two unpalatable options: either to proffer to our witness an invitation to go on at some length, or to deny him this opportunity and risk being seen as attempting to quash important testimony. This strategy had the additional advantage of giving license to the attorney who had called him as a witness, in redirect, to ask him to now “tell the jury what you wanted to explain earlier but were not allowed to do by the plaintiff’s lawyer.”
The jury found that he was indeed, as promised, a “real character” and that he did tend to launch into windy digressions when given leave to do so by his questioner. But they also saw him as highly credible. He played a crucial role in securing a favorable verdict.