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Are You Asking Your Witnesses The Right Questions?

By Brian Harris

ne of the biggest lessons I learned about witness preparation happened when I was just starting out as a jury consultant. I was working on a pharmaceutical patent case in which expert witness testimony was critical. The trial team brought me in because they were concerned about how their key expert would come across to the jury.
They said that his content was good, but his non-verbal communication was a real problem that could send the message that this expert did not know what he was talking about.

This expert was, quite possibly, the smartest person I had ever met.
He had multiple Ph.D.s and was the preeminent expert in his field. He knew the chemistry at issue in the case better than anyone in the world ? no exaggeration.  We went through some mock direct and cross examinations with him. His answers were perfect. His demeanor was totally miserable. He was fidgety. His voice kept dropping to a whisper. He was just so blatantly anxious.

I went through the basic training, explaining to him that jurors are simply people who want to understand, just like the students he taught at his university. It didn?t help.  We went through each critical topic area and identified the basic key messages he could rely on throughout testimony. It didn?t help. I gave him the basic advice: You don?t have to accept the examiner?s language- rephrase in your own words if you are uncomfortable with ?yes? or ?no?; Remember that your audience is not the questioner, but the folks in the jury box; If the questioner is nasty, take a breath to separate the content of the question from the tone, and then answer it; Your only job is to listen to the question and answer it?Didn?t help. Didn?t help. Didn?t help.

Sometimes the simplest solution is the best

The ?aha? moment came when we were on a break and both science expert and jury expert were able to take a breath.  Chatting about the day?s events, I said to him, ?Dr. A., I am at a total loss. You seem to know the answer to every question with absolutely no problem, but there just seems to be something bothering you, and I can?t figure out what it is.  What could be the worst thing they could possibly ask you at this trial?? Dr. A. immediately said ?I am not worried about any of the questions at all. I know this material and this case well enough to know I can handle whatever question they throw at me.?

I tried again. ?If you know the material, and there is nothing they can ask that you can?t handle, what is causing you to appear so worried? You are not acting worried while we are talking right now, so I know that is not how you normally communicate.?

Dr. A. looked down as if he was ashamed.  After a moment, he spoke.
?Well, there are two things,? he said. ?First, I am dyslexic, and I am worried that they will give me something to read and I will look stupid if I mess up the words. Second, I have a problem with my prostate and I am worried about having to go to the bathroom. Jurors will think I am taking all those breaks to get the answers to questions.?  Bingo. Such a simple question, but I finally hit the right one.

?Did you tell the attorneys this?? He hadn?t. It never came up and was too embarrassing a topic for him to bring up. So, we discussed it with the trial team and decided that if we bring the issues up to the jury in the beginning, they will understand why he needed to take breaks, forgive any ?misreads? of documents, and be all the more impressed that this expert went so far with a learning disability. Having these worries out in the open and putting a comfortable solution in place, the weight was lifted from Dr. A.?s shoulders. In the next session, there was a marked improvement.

The moral of the story is this: Sometimes, as litigators, we get so mired down by the facts and arguments of the case that we forget to check in with the people of the case. All witnesses, whether plaintiffs, defendants, experts or whomever, are human beings who are being put in a very uncomfortable and unnatural situation. Don?t forget to check in with them on a human level.

I tell this story to just about every witness I prepare, and then ask ?Is there anything, related to the case facts or otherwise, that is bothering you or that you have been thinking about as you get ready to testify for this trial?? If you ask the right question, you may be surprised about what you learn.

Melissa M. Gomez, Ph.D. is a jury consultant and owner of MMG Jury Consulting, LLC. She holds a Ph.D. in psychology from the University of Pennsylvania. Her experience includes work on more than 100 jury trials in Philadelphia and across the country, with a focus on the psychology of juror learning, behavior and decision-making. She has more than a decade of expertise in research design and methodology, as well as in behavioral and communication skills training.

This posting is for general informational purposes only and should not be construed or interpreted as advice specific to any matter. Each case is different and no strategy applies uniformly to all.

If you have any questions regarding jury psychology that you would like to see addressed in this blog, please contact Dr. Gomez at melissa@mmgjury.com or call 215-292-7956.

Melissa M. Gomez, Ph.D.
MMG Jury Consulting, LLC
www.mmgjury.com

Full post as published by The Legal Intelligencer Blog on March 22, 2010 (boomark / email).