With Challenging Witnesses, Setting Expectations Allows You To Surpass Them

We’ve all had the experience: stepping up to a restaurant’s host stand and being told there’s an hour-long wait – just to be seated 30 minutes later.  It’s a classic example of “underpromise and overdeliver,” and it gives you a positive feeling about the place because it’s already exceeded expectations by seating you earlier than anticipated.

Just like restaurant hosts have the power to surpass expectations since they created them in the first place, so do trial attorneys when it comes to putting challenging witnesses on the stand.  By explaining to jurors a witness’ rough edges or faults ahead of time, you can create a lower bar that is easier for your witness to clear.

We have observed this several times monitoring trials around the country, and juror exit interviews have confirmed the effectiveness of this tactic.

The most notable example: an intelligent, successful surgeon who was keenly aware that he is at the top of his field.  Being a defendant in a lawsuit did not fit with his perception of himself, and his resentment of the entire process displayed itself repeatedly during prep sessions in the weeks leading up to trial.  Forget the humanization we’re constantly recommending – we were just trying to get this doctor to stop rolling his eyes and yelling, “Stupid question!  Next!” after every mock cross-examination question.

Fast forward to voir dire and opening statements.  The trial team, including one of our lead analysts, knew we had to do something to prepare the jurors for this witness’ palpable anger so they wouldn’t immediately perceive him as the arrogant, “rushed” doctor with a God complex plaintiff’s counsel desperately wanted to make him out to be.

The answer is the trial version of overpromise and underdeliver: Inoculate early; inoculate often.

During voir dire, jurors were told the defendant was extremely upset at the allegations being made against him – and context was provided that before the incident in question, the doctor and plaintiff were actually friends.  Suddenly, the jurors were primed to view our witness as a person with feelings, and understand why he might take the whole process personally.  When asked if they could be fair if this witness got upset on the stand, the jurors all nodded in empathy. This inoculation continued during opening statements, and it set the stage perfectly for what started out as disastrous testimony by our witness.  To put it bluntly, he was a jerk.  But when we talked to jurors after the verdict – for the defense, we will add – they consistently shared the same perception of our doctor: “He wasn’t as bad as we thought he would be.” Several jurors even parroted our lawyer’s language and noted they would take it personally as well if they were “under attack.”  Clearly, this was a perfect example of managing juror expectations from the outset and setting the stage for what might otherwise have been a disaster on the stand. If you have an upcoming case with a potentially difficult witness and want to discuss how to manage expectations at trial, contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.  We would love to hear from you.