Boring Jurors to Death in Your Witness Examinations

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By Jill D. Schmid, Ph.D.

A while back I was interrupted by a doorbell as I was telling a group of friends a particularly riveting story. Once the person had left, I waited for someone to ask me, “What happened then?” I mean – weren’t they all dying to hear the rest?  Turns out, the answers was no. The conversation resumed, but no one seemed to remember that I was in the middle of a story.  Now, this doesn’t happen to me very often, so I of course stewed about it and tried to come up with a justifiable reason why they weren’t interested. All I could come up with was the painful truth – no one cared.

This situation stuck with me and since then I pay attention to what happens when someone is interrupted during a story: Do people ask questions to get the story-teller to continue? Does the conversation move on with no one remembering that someone was in the middle of a story? Does the story-teller take up where they left off even though no one seems to care? What I noticed in my non-scientific investigation is that it is fairly rare that someone asks the story-teller a question to get them to continue – the story must be particularly intriguing, or was only missing the big finale. When the person continues without being asked, most of the time you can sense the disinterest as people politely let the person finish. Often, everyone simply forgets someone was telling a story and they move to the next subject.

I was thinking about this as I was watching a witness examination. I wondered, what would happen if the examination was interrupted? Would any juror ask a question to get the examination to continue or would everyone be relieved that it was over?  While there are lots of strategies and goals for witness examinations, at the most basic level, the examination must be something that jurors want to and do pay attention to, understand, and remember.  Hence, perhaps a very easy question to ask yourself as you are preparing your direct is: Would anyone care if something stopped this exam? Here is a quick list of sure-fire witness exam-killers:

  1. Long recaps of the witness’s background, qualifications and/or the company’s “amazing” history/altruism. Yes, do what you need to qualify your expert, but even if you have to do it, perhaps give that as the caveat so jurors know you’re not doing it because you’re a boring examiner. If you’re only doing it because you believe it will make your witness or company seem laudable or deserving, then you might want to reevaluate. Spending the first valuable minutes when jurors are most interested, only wastes valuable time and saps juror energy.
  1. Taking too long to get to the issue everyone wants to hear about. Typically, there is something jurors really want to or need to hear from your witness, but often that topic is buried in all of the set-up or other minor topics. By the time the witness is on the stand, jurors have heard the overview of what happened so they don’t need your witness to necessarily discuss the issues in chronological order. You can start in the middle, so to speak. Consider getting to “the” question on everyone’s minds right off the bat. You can introduce it by saying something like: “Mr. Smith, while we have lots of subjects to talk about today, I know that what everyone wants to hear you talk about the most is what happened on the day of the accident. So, let’s start there and then we’ll talk about….”  Bottom-line: don’t bury the lead.
  1. Being disorganized. Yes, I just said it’s ok to start in the middle, but there is a caveat: If you do that, you need to signpost so that it is clear to the jurors that what you are doing. Organization is critical, and that can come by signposting and internal summaries. Without an organizing structure and helpful reminders to jurors about where you are and where you’re going, jurors’ attention spans become even shorter. Jumping from point to point with no clear pattern or links, causes confusion and confusion causes boredom, which is when jurors stop listening.
  1. Too much talking, and not enough showing. Without participating, people can only watch a conversation (or two people chatting) for so long before tuning out. And, beginning by saying “Explain to the jury ….” is not enough to overcome this problem. However, adding visual interest can help jurors feel like they are a part of that conversation. Visual interest can come from providing opportunities for your witness to move around a bit – write on a flip chart, use a model or piece of equipment, demonstrate what they did, etc. For each of these, though, make sure you practice ahead of time!