Why should jurors believe your witness?

Why should jurors believe your witness?

“I saw the defendant sitting at the table.   Suddenly, he reached over to the next table, grabbed the salt shaker, and threw it at the stage.   The shaker hit the lead singer in the left eye, who screamed and fell off the stage, holding his eye.”

If you were trying to prove that the defendant had hit your client with a salt shaker, would this be enough proof?   Or would the jury have some doubts about the testimony?   If this were the only testimony the jury heard, consider the questions they might have about the testimony:

  • “Why should we believe him?”
  • “How do we know he saw what he says he saw?”
  • “Where was he located when he saw the shaker thrown?”
  • “What is his ability to remember or recollect the events?”
  • “Why was he paying attention to the defendant rather than watching the stage?”
  • “What was the lighting like? How much could he see?
  • “Is there any history between the witness and the defendant?”
  • “Were there any obstructions between the witness and the defendant?”
  • “How close or far away was he when the shaker was thrown?”
  • “Does he have any interest in the outcome of this trial?”

And that’s before he’s even cross-examined! Why do they have so many questions? Because you didn’t take the time to establish the witness’s vantage point – his ability to see, hear, or know the things about which he testified.

Consider a situation where a single event would generate thousands of vantage points:

It’s the playoffs and you’re watching your favorite football team.   If they win this game, you’re going to the Super Bowl.   Your team is trailing by five points, there are two seconds left, and this is the final play of the game.   After hiking the ball, the quarterback dodges a tackler.   He scrambles, hoping to find an open receiver.   Looking downfield, he lets loose and throws a 60 yard bomb.   Your star receiver breaks free into the end zone and leaps higher than he’s ever leaped before.   Reaching out while in flight, he makes a perfect, one-handed catch!

But then, you see the referee.   He’s waving his arms and signaling that the receiver caught the ball out of bounds.   The game is over – your arch rivals have won, and they’re going to the Super Bowl.   You and 65,000 other fans in the stadium erupt with rage.   “You’re blind, you rotten ref!” is the nicest comment you would hear.

But a moment later, watching the replay on the Jumbo-Tron, you see the receiver’s left foot land on the white stripe.  The referee was right – the receiver was out of bounds when he came down with the ball.

Unfortunately, in trial, we never get the benefits of an instant replay.   To best tell our witness’s story, we need to show why they have the ability to see, hear, or know the things they’re testifying about.   If you were telling this same story to the jury, you wouldn’t start by having the referee describe what he saw to the jury.   You’d start by showing that the referee was in the best position and had the best ability to see what happened.   Here are some of the things you’d want to establish before he told the jury about the catch:

  • What is his ability to see?   Does he have 20/20 vision?
  • How close was he to the action?
  • Where is he trained to position himself on the playing field?
  • What is he trained to look for?
  • Why is it important that he follow his training?
  • Where was he positioned?
  • Were any other players in his way?
  • Where was his attention focused?

By highlighting his ability to observe before asking him what he saw, the jury can place greater weight on his testimony.   In your case, consider the strength of your witness’s vantage point.   Does the witness have any special skills that helped them view, remember, or interpret the event? Does the witness have any special training, perceptive skills, knowledge, experience, or unique skills that allow them to see these events better than the ordinary person?   If so, teach the jury about those skills before you ask him what he saw, and your jury will understand why they need to believe your witness’s version of events.

Ask for What You Want

How many times a day do you ask judges, clients, or co-workers to do something or to give you something?  During any given week, you probably make hundreds, perhaps even thousands, of requests.  You ask your co-worker to work on a project, you ask your assistant to handle a client issue, you ask your kids to help with the dishes…  The number of requests that you make each week is staggering.  But how many of those requests are actually granted?  Have you ever had a problem with someone not doing not what you asked?

Why?  You’re a lawyer.  Shouldn’t you be the master of persuasion who can get what you want, when you want it, and how you want it, every single time?

Unless your name is “Svengali the Master Manipulator,” chances are that many of your requests are not being granted, or at least not being carried out exactly the way you’d like to see them handled.  But it’s not because your requests are falling on deaf ears.  In fact, your listeners are probably hearing exactly what you’re saying.  The problem is that you’re asking for the wrong thing.

That’s because when most people make requests, they don’t ask for what they want.  Instead, they actually ask for what they don’t want.

For example, has your boss ever asked you to work on an important client issue?  Many bosses will say something similar to, “This is our most important client, so whatever you do, don’t mess this up!”

But look at the embedded command in that request for help: “Mess this up.”  Rather than asking you to do a great job or to help the client, your boss is telling you to do the exact opposite of what he really wants done.

The reason he’s telling you to do the opposite of what he wants is because our brains aren’t wired to hear the word “Don’t.”  Our minds think in images.  When you hear the word “Orange,” you don’t think of the letters “O-R-A-N-G-E.”  Instead, you think of the fruit, the color, or maybe even a bottle of orange juice.  When you recall information, your mind pulls up the pictures that help you “see” the memory.

This phenomenon makes it difficult to see the negative of something.  If I ask you to think of “Not an Orange,” your brain has difficulty following my request, because it doesn’t have a readily available picture for “Not an Orange.”  Instead, your brain reverts back to your picture for “Orange,” because that’s the only picture it can pull up.  Rather than thinking of what I hoped you would think about, you actually began thinking of the exact opposite.

The same thing happens when your boss tells you “don’t mess this up.”  You don’t have a readily available picture for “Not Messing Up,” but you sure have a great picture of “Messing Up.”  Your picture for “Messing Up” may include the image of you fumbling and bumbling your way through the presentation, missing an important legal development in your research, or maybe even an image of you sleeping through the filing deadline.  Whatever your picture of “Messing Up” looks like, that will be the image that jumps into your mind when your boss tells you not to mess up.

That’s why it’s important to ask for what you want, rather than what you don’t want.  Rather than telling you “not to mess this up,” your boss would get better results from you by saying, “This is our most important client, so I know you’re going to do an exemplary job.”  Rather than embedding a negative command into your head, now your boss is embedding a positive command, “Do an exemplary job.”  Your brain can absorb this positive request and put it into action, because you know (hopefully) what an exemplary job looks like.

If you’d like to get better results when you ask others to do something, take a moment to rephrase your request in a positive format before you make your request.  Anytime you feel yourself getting ready to say, “Don’t,” ask yourself, “What do I want this person to DO?”  Rephrase your question positively, so that the listener is given a positive command and clear direction for what to do next.  Here are some examples of how changing the phrasing of your request can change the outcome:

  • Rather than: “These are our most expensive dishes, so whatever you do, don’t drop them.”
  • Ask for what you want:  “These are out most expensive dishes, so whatever you do, hold onto them carefully.”
  • Rather than: “The game is on the line, so don’t drop the ball.”
  • Ask for what you want: “The game is on the line, so protect the ball.”
  • Rather than: “The statute of limitations has almost expired, so don’t miss the filing deadline.
  • Ask for what you want: “The statute of limitations has almost expired, so file these pleadings by Friday.

By changing the picture in your listener’s mind, you change the outcome.  Rather than urging them to focus on the negative outcome, you shift their focus towards the positive outcome that you desire.  Eliminate the word “don’t” from your request vocabulary, and ask for what you want.  When you do, your presentations and your requests will become dramatically more persuasive.

Which Jurors are Lying to You?

How honest are your potential jurors?  I don’t know about you, but in the past, I’ve seen more than my fair share jurors who lie.  And the sad part is, there doesn’t seem to be any guaranteed way to catch them.  In a two week span, I selected juries for five different cases.  And in almost every single case, at least one juror lied to me, my opponent, or the court.

In criminal cases, one of the issues we almost always inquire about is whether any of the jurors have ever been charged with a crime.   We explain that it doesn’t matter whether it was a misdemeanor or a felony, and it doesn’t matter whether it was dismissed or whether they went to prison.  Usually, one of the attorneys will ask a question like, “Have you, or someone close to you, ever been arrested or charged with a crime?”  Then we’ll ask for a show of hands to see who falls into that category.  Probably every criminal prosecutor and defense attorney asks something similar, because it’s important for us to know whether or not any of the potential jurors have ever been charged with a crime and how that experience is going to shape their perceptions of the evidence and proceedings in this case. 

In the five cases I tried, every juror on every panel was asked whether they had ever been charged with a crime.

But here’s the interesting twist: We weren’t trying to discover whether or not they’d ever been charged with a crime.  We already knew what what their answers should be.  In one of the jurisdictions where I practice, the prosecutors have access to a statewide criminal history program and can run a criminal history check on every potential juror.  In addition, they have a computer in the courtroom so they can pull up more detailed information from the clerk’s office or their case management system. 

So if we weren’t trying to discover whether or not they’d been ever been charged with a crime, why were we asking the question?

Because we wanted to determine which jurors would be honest about it. 

Every juror on every panel was asked whether they had ever been charged with a crime, and in almost every single case, at least one of them lied.

After we completed questioning of the entire panel, we asked the judge to bring some of the jurors back into the courtroom for individual questioning.  Almost without fail, once we confronted them about their lie, they would admit the truth.  We heard a variety of reasons why they hadn’t been honest:

One told the prosecutor that he’d “forgotten.”  “Forgotten?!?”  This guy wasn’t just given a ticket or a Notice to Appear — he’d spent two nights in jail.  Quick, do me a favor and take this pop quiz: How many times have you ever been handcuffed, arrested, and transported to the county jail?  Is that something you “forget?”  (Especially if it only happened 4 or 5 years ago…)

Another was asked, “Why didn’t you tell us about the time two years ago when you were sentenced to probation after you got caught acting as a lookout for a burglary?”  Confronted with the details, he shifted uncomfortably in his chair, then said he thought “it didn’t count,” because he hadn’t been adjudicated.

There were a few other notable comments, but the most memorable was the guy who’d been arrested, convicted of a crime of violence, and sentenced to a lengthy jail sentence.  His reason for not telling us?  He “just didn’t want to.”  If we hadn’t had the details of his arrest and conviction in front of us, we never would have learned about his prior arrest, and it would have changed the dynamics of the entire jury panel.

Unfortunately, these lies may not be uncovered until after they’ve affected your verdict.  For example, there was a $28,000,000 plaintiff’s verdict that was thrown out and a new trial ordered because three jurors lied during jury selection.  The defense attorney had asked whether anyone had ever been involved in a lawsuit.  Two of the jurors didn’t raise their hands at all (one had been sued twice, the other three times), and the third admitted she’d filed a lawsuit, but didn’t mention the other nine times that she’d been sued.

We don’t want to believe it, but some potential jurors will lie to us.  These lies affect the integrity of the jury system and the validity of your verdict.  I wish I could give you a secret formula for catching every lie and keeping those potential jurors off of your jury, but there’s no perfect solution.  The best I can recommend is that you make a clear record so that you can ask the court for help if you do uncover a lie.

First, ask the questions.  Ask specific questions.  And if you have any doubts about a juror, ask them directly.  The more specific and direct you are, the less wiggle room they have, and the more likely it is that they’ll be honest.

Second, don’t leave any room for ambiguity in the record.  If you ask, “Has anyone ever been arrested for any crime?” and none of the jurors raise their hands, make sure you create a record.  Say something like, “None of the potential jurors raised their hands”  or, “Let the record reflect that no one has raised their hand.”  Then, if you discover that one of the jurors has a criminal record, the court will have something to act upon.  Without that statement, your appellate record will be ambiguous as to whether or not the any jurors responded to your question.

You won’t be able to catch every lie, and not every lie you catch may matter. But if you do catch someone in a lie and you think it affected your verdict, you need to make sure that your court record lets the trial court or appellate court help you out.