There are generally two types of valuable information: 1) new information; and 2) old information conveyed in a new way to help you see it in a different light. This blog is intended to be the latter.
I have talked ad nauseam about the importance of the performance of a key witness on the stand. There is little debate to be had on this issue, which is why I don’t put forth as much effort to make this point as I used to, but this creates a trained incapacity. It is so obvious to me that I take it for granted, and I have had several reminders lately about this. For example, I have a good friend who is also an attorney. We have talked about this may times over beers over the last decade. We are on the same page. He recognizes how critically important the performance of his key witnesses is in his case. Yet he recently went to trial without spending time with his key witness practicing the testimony in the form of a mock cross examination. When I asked him about this, he explained that his company rep is such a good, likable guy that he just didn’t think it was necessary. We talked about the company rep’s testimony at trial and while it certainly was not a disaster or anything close to that, it was also clear that there were plenty of unnecessary bumps along the way.
I’ve been thinking about this conversation for several days now. My friend’s reasoning was fair. A smart, likable person does not immediately seem like a candidate for devoting a few hours to a mock cross examination, especially since time is already tight in the weeks leading up to trial. The problem is that most witnesses have two personalities, and my friend was focused on the personality least likely to show up on the witness stand.
Public speaking is scary. It ranks higher on surveys of fear than drowning and plane crashes. When nerves and anxiety kick in, it changes things. People come across differently when they are nervous or anxious. They engage in verbal and nonverbal behaviors they may not even be aware of. Sometimes, their physical presentation changes. Confident people suddenly let their shoulders sink on the stand and their voices drop making them sound unsure and lost. Thoughtful people become fast-talkers and their voices go up in pitch making them sound stressed and simply in a rush to get it all over.
There are so many examples that can be given here, but what it really shows is that every person has two personalities: their daily life personality and their witness stand personality. Usually, the former is more comfortable and relaxed, while the latter is scared and defensive. The attorneys on the other side of your case know this even if they do not verbalize it in this way. They are likely using a variety of tactics to ensure the jury sees the scared and defensive witness.
I like this concept of two personalities because it moves us away from the assumptions we make when we meet someone about what kind of witness they will be. A friendly and likable person does not necessarily translate to likable testimony. Intelligence does not translate to a good performance. Even when attorneys sit in a conference room and go through documents and key issues with witnesses, they are seeing the daily life personality of the witness because the witness is not under as much pressure in that situation. It is so much easier to talk through case-related issues with a friendly attorney on your side than it is to have a spotlight on you while an adverse attorney asks you questions designed to trick you into agreeing with something you did not intend to agree with.
The presentation and performance of your witness can fundamentally impact the jury’s decision on both liability and damages. Consequently, it is critical to devote time to mock cross examination of your key witnesses so you can discover and manage their witness stand personalities. Jurors are so much more forgiving of a likable witness who screws up the content of the testimony than they are of an unlikable witness who gets everything right in the answers. They will do the work for the former, and they won’t do anything for the latter. Practice adverse testimony with your key witnesses. Failing to do so gives up too much control in your case and its outcome.