Jury Appeal

One of the critical factors we are finding about witness performance is that there are questions that the witness fears being asked and this fear creates much stress and ultimately inconsistent behavior on the stand.  Since stress induced, inconsistent testimony is probably the greatest threat to cases, it has become a top priority to understand what these feared questions are.  We ask outright, but sometimes we don’t get the real answers.  This is where some understanding of body language comes into play.

Recently, we were prepping a witness that was very nervous about her testimony.   We were able to alleviate much of that nervousness by helping her focus her testimony and giving her a clear understanding of what place her testimony had within the trajectory of the case.  However, I sensed there was still something else we hadn’t discussed that was bothering her.  Perhaps it was unconscious?  So I started to ask some tangential questions and low and behold when I approached one subject there was a definitive tell.  I approached this area several more times and as I did each time she reached for her neck with her hand.  This was the only time she made that movement.  This is clear body language that indicates nervousness or lack of confidence.  This area of inquiry was about living arrangement between her son and his girlfriend as well as between the client and her live in boyfriend.  Because of this body language I confronted the area directly and we were able to alleviate her nervousness that the opposition would exploit these “moral deficits.” [Note, the moral deficits were in her head, not mine].

I tell attorneys that what we do with witnesses is very sophisticated, but often the lay person won’t notice some of the key things we do.  This is an example of that at play.  I doubt the attorney realized the reason why I circled around to that area of inquiry was body language.  I have found that knowing how to identify the basic “tells” of body language is very helpful in working with witnesses.

A new study, just published in Neuron magazine, tells us something we suspected but had no previous scientific backing.  We remember items that surprise us more readily than the mundane or expected. During our witness preparation sessions we thought finding surprising pieces of testimony would make the testimony more easily remembered, now we have some proof of this process.

When you are talking to your witnesses, it is easy to simply reject some things they remember as not relevant to the case, but you shouldn’t do that automatically.  If this part of the testimony is surprising or non-intuitive you might want to keep it in to help jurors remember the testimony.  If you really want to add sophistication to the testimony, design it to have a key point occur right after a surprising piece of testimony.

Critical point analysis is a concept, first developed by David Hawkins, which starts from the idea that any complex system has a specific, critical point at which the smallest input will result in the greatest change.  If one could both identify that specific point and spend their time improving that specific area, a maximized improvement would result.

Applying this concept to litigation would result in finding the most efficient place to put your litigation resources.

Critical Point Analysis is exactly what we did at Best Evidence to come up with Jury Appeal.   We believe the evidence is clear that witness performance is the critical point at which litigators should aim their resources.  Witnesses are going to tell your story to the jury.  The perception of your witnesses are going to direct the trajectory of your opponent when it comes to settlement talks because they will either be emboldened or fearful once they take a look at your witnesses.  Imagine the glee of plaintiff attorneys when they take a deposition of a defensive, incoherent nurse in a medical malpractice case.  Or the fear of a plaintiff attorney when they see a focused, well spoken likeable fact witness for the defense.

You can bet those emotions carry over to settlement talks.  Attorneys should put this critical point analysis to work for them by making sure their witnesses are fully prepared before deposition/trial to give a commanding performance.

Recently, the idea of using the reptilian brain has gotten much interest in law circles.  The reptilian brain is the part of the unconscious that represents our basic survival instincts, and the latest research demonstrates it controls our behavior first over the higher order parts of the brain [rational].  I believe you can apply this understanding of decision making to your cases, and should always think through how to make your case “reptilian brain friendly.”  I wrote previously about the issue here.

Perhaps the most important area you need to make sure the jurors reptilian brain is dominant is for your witnesses.  This critical area is ripe for jurors to make fast, early decisions concerning the authenticity of your witness.  Complexity is the enemy for the reptilian brain as research has demonstrated the more complexity required in the thinking process the more the higher order thinking [rational] takes over.  This means that your witness should testify with a tight focus.  It also means that under cross-examination the witness should be prepared to fend off any complexity as well as reinforcing the focused case themes.

I mentioned in earlier posts that a large part of the work we do with witnesses is to focus the testimony on case themes and to “bullet proof” the witness.  We do this based on our understanding of the reptilian nature of decision making by jurors.