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.

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.

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.

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.

Last week we worked with a witness that was extremely nervous to the point she didn’t want to leave her partners side.  Yet, in a few short hours of working with her, she was transformed and gave a commanding performance at her deposition the next day.  You could literally see in her body language a releasing of tension during the session.

Another advantage is that astute attorneys use this opportunity to define their understanding of the witness and the case.  It is not unusual for attorneys to take copious notes which we are told is extremely helpful.  I always give the attorney some signal words to communicate to the witness before their testimony that elicits mindfulness for their testimony.  These words act as anchoring mechanisms to the positive feelings that come out of our sessions.

This is yet another example of how our unconscious rules the mind and keeps rational weighing of the evidence from occurring.  It also points out that just because your expert is from Harvard and the opposition expert is from Southwest State, the academic pedigree won’t have much bearing on which expert will be believed!  Better to build the emotional appeal of your case to a point where your expert will be believed no matter what s/he says!  Better yet to have your fact witnesses demonstrate credibility and authenticity on the witness stand.  If the doctor you are defending comes off as caring, competent and likeable you are well on your way to winning no matter what the plaintiff’s expert testifies to!

Now if this is not enough to break out in a sweat it gets worse.  We have no way of identifying definitively which people will fall in this category of strong group conformity.  I see this group-think happening to some degree every mock jury I watch.

However, there is a silver lining for litigators.  It takes a strong consensus to create this conformity.  Therefore, litigators can dampen this effect by gaining the favor of only a minority of jurors.  The best place to accomplish this is with your witnesses.  If your witness comes off as credible, honest, and authentic you will gain some advocates that can create doubt to dampen the conformity process.

The first item jurors should hear from your witness is the item you want them to most use for their decision.  For the defense, you might want to use for your fact witness, “What was the plaintiff doing when you first saw her after the accident?” Especially, if the answer is “she was standing next to her car calmly talking into her cell phone!”  The image you leave for the jurors with this question is a direct contradiction to the plaintiffs claim of injury from the accident.  This re-framing image will have a powerful emotional component for jurors who are “doubting” the veracity of the injuries.

This is troubling because actual competency or even honesty have little correlation to these visual clues.  So in a lot of ways we remain mired in high school decision making mode, voting for the “good looking” people for homecoming queen and king!

What this means to your case is that no matter how the fact pattern is laid out to your advantage, if your chief witness comes up short in comparison with the opposition witness, then you are likely to have a poorer result.  And it is possible that your witness will come up short for no other reason than what they look like!