Litigators must educate witnesses about effective courtroom communication so the witnesses can articulate a detailed and convincing story for jurors. Witness preparation must begin with understanding the audience, include what the witness legitimately can expect to accomplish during testimony and involve rehearsal of key communication skills.
No. 1: Simulate the trial experience during witness preparation. A lawyer on a shoestring budget can conduct an effective simulation. Aesthetic alterations to a conference room, such as lining up chairs to resemble a jury box, quickly set the scene for the witness. Office staff can fill the chairs to make the experience more authentic. Practicing direct and cross-examination within this environment helps the witness and attorney alike by rehearsing in a more representative environment.
Jurors have the same fundamental needs and fears that people have in everyday life: needs for inclusion and acceptance and fears of rejection and embarrassment.
After jury selection, jurors rarely hear anyone speak their names; they are anonymous. But people in today’s society are almost never anonymous. Outside the court, most jurors are treated as individuals: catered to, served and target-marketed.
How does a witness provide jurors with an experience that recognizes their needs and assuages their fears? How does a witness-storyteller demonstrate that he or she is a truthful and trusted source? The answer to both questions is: delivering customer service that anticipates the jury’s needs and expectations.
Witnesses and lawyers often overlook this simple idea because they live in an age of information overload, ubiquitous social media and a flood of direct advertising. All too often, lawyers seek to re-create for the jury what jurors have seen on the large and small screens of their televisions, smartphones and in movie theaters.
The reality of the courtroom is that jurors are not likely to get the entire back story, see a smoking gun or be treated to a Perry Mason-like, show-stopping admission during cross-examination. Real-world courtroom dramas are tedious, replete with hurry-up-and-wait scenarios that make it difficult to lay out the story so the jury can make sense of the case. This, not drama and glamour, is the true nature of the legal process.
Knowing that, lawyers can prepare witnesses to address the jury personally, bringing jurors into the conversation. Counsel also can personalize the storyline, which separates the sincere witness from the perceptively deceptive one.
No. 2: Define the role of the witness. Some witnesses believe their job is to win the deposition, the suit or the exchange with opposing counsel at trial. These beliefs cause unnecessary and unrealistic anxiety, which, in turn, inhibits a witness’ ability to communicate effectively.
Witnesses need to understand that litigation is a team sport; while there may be some fumbles along the way, the witness’ job is to move the ball toward the goal. This is accomplished by consistently meeting one particular need of the jury: a responsive answer to the question asked.
Lawyers can tutor witnesses in effective courtroom communication techniques and help the witnesses rehearse them. A few modifications to everyday communication go a long way in establishing and maintaining credibility on the witness stand.
Changes include: 1. positioning the witness in the jury box to create a communication triangle of the questioner, the witness and the jury, as opposed to a straight-line exchange between the questioner and the witness; 2. maintaining eye contact with the jury; and 3. demonstrating open body language that conveys a calm, cool, collected and — this is important — consistent demeanor during direct and cross-examination.
No. 3: Include the jury in the conversation. With these modifications, jurors believe the witness is talking to them personally, and they are more likely to trust the witness.
In the courtroom, where perception is often as powerful as reality, jurors make their decision without the usual resources and discussions available for other important decisions. They often unknowingly base decisions on their feelings and the principles of social psychology, rather than facts and evidence.
For example, jurors determine who is telling the truth by unconsciously checking for consistency between a witness’ words and behavior, e.g., “Does this person seem like she believes what she is saying?” or “Does that person act the same way in the courtroom as he does outside the courthouse?”
Jurors also weigh inconsistencies between what the witness does or says with how jurors think they would feel in that situation, e.g., “Is this a company for which I would continue to work?” or “Is this a person with whom I could work?”
Younger jurors may be loath to make judgments about others’ behavior, asking themselves questions such as, “Who’s to say what’s right?” “I haven’t walked in their shoes,” and “I don’t think anyone knows what’s right in all situations.” Yet that is the jury’s task. The legal system asks 12 jurors to decide with a single voice who is telling the truth and what is just.
Build the Story
So what do the jurors do in the jury room? If the litigators have given them the building blocks of a story that makes sense, jurors can link those pieces together, dissect them and reconnect them to determine whether the story still fits together in their minds.
Witnesses who are good storytellers allow the jury to feel included in a conversation to which they’ve never verbally contributed. Witnesses can talk to the jury by looking at them during these conversations of direct and cross-examination. Lawyers can instruct witnesses on how to take the punches of cross-examination with unflustered, quiet confidence.
Trial lawyers seek to help the jury make a decision in their client’s best interests. Perhaps the best way to do so is to foster in witnesses the ability to tell a story on which the jury can rely when making a decision jury members ordinarily may feel unqualified to make.
Communication with the jury that includes eye contact coupled with an open seated position in the juror box will go far in establishing a connection and humanizing jurors’ experience.