Testimony: How You Say It Is as Important as What You Say

When we work with witnesses during deposition or trial prep sessions, a crucial aspect of this process is videotaping the witness answering tough questions and playing back the footage for them.  If you’re one of those people who dislike the sound of their own voice, then you know how uncomfortable this can be. 

However, we believe this exercise is vitally important because it gives witnesses an idea of what a jury would see and what adjustments (in many cases, immediate ones) can be made to better appeal to those jurors.  Especially during trials where both sides haven’t given their presentations the “Twitter treatment” to simplify their stories, jurors can get bored and focus their attention elsewhere – including the clothing, demeanor and attitudes of witnesses and attorneys.

We recently monitored a trial after which we interviewed several jurors and asked them about the drivers behind the unanimous defense verdict.  In addition to aspects of the case they believed were stronger for the defendants, they also mentioned the key witness for the defense – a healthcare provider accused of skipping safety steps during a heart catheterization procedure – was a particularly strong witness.

Although this witness was on the stand for more than four hours answering a slew of tough questions, the foreperson condensed this witness’s performance down to, “She answered directly and without hesitation – that is not the type of person to veer from her routine.”  

After showing a witness' video deposition to focus group jurors and soliciting their feedback, we also find it useful to show the witness later clips of the participants discussing their observations.  Seeing objective strangers discuss a witness’ demeanor, rather than jury consultants and the legal team sitting right in front of them, can lend a certain third-party credibility to the feedback. 

We recommend conducting preparation sessions with all witnesses – not just the “challenging” ones – because as we have learned from jurors there are fine lines between “direct” and “rehearsed,” “confident” and “arrogant,” and “knowledgeable” and “defensive” – and sometimes a little outside perspective on these nuanced differences can make a dramatic difference in demeanor, attitude and credibility.  If you have an upcoming case that could benefit from witness preparation, or you would like to garner juror feedback on specific witnesses, please contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.