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.
