Juror Witness Reviews: What Jurors Want

I wanted to compile some actual comments from jurors in a mock trial to show the stark contrast between how they viewed two witnesses: a female, quadrapalegic plaintiff and a corporate witness from Europe, who testified through a translator. The female was every defendants nightmare: young, attractive and gravely injured in an auto accident. The defense witness was also scary: Very corporate, foreign and using a translator. Not ideal circumstances.  Here are some comments about the plaintiff:

“Young, nervous and not real aware”

“No recollection–not a good witness”

“Nervous and childlike in her facial expressions. She was chewing gum and playing with her hair.”

“Unhelpful. She did not even know the scope of her own memory. Disingenuous.”

“Young and small; not sure I trust her.”

“A typical young girl who made a mistake while driving.”

Now the comments for the company witness:

“Kind and concerned.”

“Honest and to the point.”

“Knowledgeable and confident.”

“Very honest and trustworthy. Knew his product very well.”

“An intelligent professional.”

These responses illustrate several things to watch out for when prepping witnesses and preparing for trial. First, prepare your corporate witnesses PRE-DEPOSITION. This corporate witness was prepared and it shows. The language barrier posed no problem and what came across was confidence, trustworthiness and competence in his field. Secondly, the plainiff in this case, even though she had a lot going for her by way of sympathy, could not get jurors on her side. In cases where the plaintiff is female (especially as a plaintiff/victim), my experience is that women are much harder on other women and this held true here. I say this not to be sexist when choosing the witness that will represent your company, but to be aware that any “flaws” or problems will be magnified by other women. These particular jurors were confused by the inconsistencies in the person: they were told she was a vivacious, young woman with a lot of promise in life prior to the accident (of course); in reality, she came across as extremely unsure of herself with little to no recollection of not only the accident but of events prior to the accident. Jurors interpreted this as disingenuous and sketchy. In choosing female witness, be sure that they way they are portrayed is consistent with their message. For example, portraying a female expert as “the foremost authority” on a subject, but she looks 25, will pose a problem.  If counsel tells jurors that this particular corporate witness is the person most knowledgeable about a particular issue, jurors will not want to hear, “I don’t know” or “I am not familiar with that issue.” Jurors will notice discrepancies. The other thing these comments reinforce is what consultants say jurors look for in witnesses: confidence, likeability, trust, consistency, helpful testimony, etc. If counsel can accomplish that, jurors will be much more receptive to the message.

Is Toyota tweeting?

Just sayin’—now would be a good time to get out there where people will look for you.  (Last month would have been better, but get going. Your feel good commitment commericals are only part of the battle.)

Witness prep versus [real] witness prep

Witness prep, I find, is a tricky subject with counsel. Many times counsel believe they have adequately prepped the witness or plan to “run through it” a couple of times with them. With any witness this is inadequate, but with critical witnesses and witnesses with difficult testimony, it is extremely shortsighted. The “run through it” means going over the deposition. Terrific for substance; weak for communication to a jury. Jurors, especially when faced with a difficult and challenging case, look to witnesses to tell a story, clarify facts and generally provide someone to believe in. (Yet another reason why credible and likeable witnesses are so important. But I digress.)

When counsel gives assurances that the witnesses are being “prepped”, I just cringe.  Worse than dealing with a difficult witness is dealing with difficult counsel who believe that their prep is sufficient to carry the witness through all the complexities and difficulties in testimony in front of a jury. I love reading through counsel’s “prep” outline, which amounts to a summary of the key points of a deposition that they want covered in direct. There are very few witnesses who are so good that they couldn’t benefit from at least some work. Witnesses, even those who have testified a few times, are nervous. They are uneasy, they are ill prepared for what to expect from opposing counsel; they are perhaps familiar with bench trials but not jury trials; they have only been deposed, not actually testified at trials. There are many, many issues to consider for witnesses, not only their depositions.

Research has shown that jurors trust experts who are confident, warm, engaging and likeable. They tire of and reject witnesses who are arrogant, condescending, timid and argumentative. If  jurors do not like your witness, they will not trust them and will not accept that witness’s testimony/opinions. Period. Think about you interactions with people on a daily basis. It isn’t much different. If you are at a cocktail party and you meet someone who is well-educated on a subject you are not and you have a conversation about that, you walk away with an impression. Was that person helpful? Understandable? Warm? Arrogant? Condescending? Interesting? All of these charactersitics play an important role in your assessment of whether you believe that person, want to hear more, learned anything, etc. The same holds true for jurors. They want to learn information to help them make an important decision. It would be a shame to let that opportunity go.

Counsel should recognize what an important role witnesses play in their story at trial. Jurors do want to hear openings and closings–those are important–but the story can really shine through dynamic and well-prepared witnesses. And can crash and burn with ill-prepared ones. Trial prep time is always busy. We consultants appreciate that, but shortchanging your witnesses is not the right answer.