At Trial, More’s Not Always Better

If you’ve been following the news recently, you’re probably aware there are currently 15 candidates running for the Republican presidential nomination.  An ongoing debate has questioned whether 15 is just too many candidates – overwhelming voters, creating chaos and making it difficult for candidates to break through the noise.  Although we have no opinion about this political issue, when it comes to witnesses at trial we do believe you can have too much of a good thing.  We’ve long believed that more is not always better, and you shouldn’t present 12 witnesses if seven or eight will do.  Similar to voters, jurors have a limited attention span – and a concise, surgical presentation is more effective than one that drones on and on. Trial attorneys sometimes feel the need to match the opposition witness for witness.  You obviously need to present enough witnesses – and the right ones – to tell your story and rebut the opposition’s case, but we don’t recommend feeling like you “need” to present a certain type of witness just to check that box and match the other side’s number.  Instead, we recommend streamlining your trial presentation whenever possible without sacrificing important testimony.  We’ve interviewed hundreds of trial jurors through the years, and one of the most common complaints is redundant testimony that “wasted our time” – not once has a juror told us one side’s trial presentation was too short. With that in mind, here are a few ways we’ve encountered to streamline your case: Have witnesses serve double duty – Have your experts testify about multiple issues when possible.  There are times in medical malpractice cases, for example, when separate standard of care and causation witnesses are necessary, but just as often a single expert could handle both of these areas.  Just because the other side uses multiple witnesses doesn’t mean you need to. Avoid repetitive testimony – If you feel like you’ve defeated a certain issue during the other side’s case through their witnesses, don’t always feel the need to present your own witness about the issue.  Although it’s sometimes helpful to re-emphasize certain points with your own witnesses, also bear in mind that you’ll be opening your witness up to potentially damaging cross-examination.  Sometimes it’s better to quit while you’re ahead. Keep it short(ish) – Jurors rarely enjoy a four-hour direct or cross-examination, and in our opinion it’s rarely necessary.  Cover the ground you need to, and move on to the next issue when you think you’ve made your point. Be prepared – Jurors find nothing so frustrating as an ill-prepared lawyer fumbling through documents during the middle of a witness examination. To the extent possible, plan ahead and know which documents you’ll need so you can make the best use of your time – and the jury’s. Every case is different, and the witnesses you'll need to present and what you should cover with them depends on the specific case.  If you'd like to get a read on the key elements of your case, our focus group process can help.  Contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010 for more information.