Dr. Noelle Nelson

Teach Witnesses Best Way to Testify, Relate to Jurors:
Certain mannerisms can alienate panel
(originally published in The Daily Journal, Verdicts & Settlements)

Jurors are more forgiving of lay witnesses than of any other participants in the courtroom. Nonetheless, these witnesses can be guilty of such serious verbal miscues that they can damage otherwise valuable testimony in the eyes of the jury. Helping witnesses correct verbal turnoffs is critical to the success of the case.

1) Witness' responses don't match the question.

Jurors are primed by attorney questions for certain answers. The question, for example, “When did you first meet Mr. Smith?” gets jurors ready for a date or time. When the witness, instead, responds “Mr. Smith was no concern of mine. I was just taking care of …” throws jurors off their expected track. Jurors, (who rarely want to be empanelled in the first place), dislike having to exert more effort than is absolutely required. Therefore, a witness who persists with non-responsive answers irritates jurors. If witnesses continue in this mode, they will eventually appear evasive. Jurors are willing to forgive a few non-responsive answers, but only a few.

Witnesses will appear more responsive to questions by incorporating part of the question in their answer. This technique helps witnesses stay on track. For example, “What happened during your initial interview with Mr. Smith?” is answered with “During that interview, the first time I met him, Mr. Smith said . ..”

Jurors, having heard an answer that “matches” the question, are satisfied, and the witness's credibility is maintained. Answering in this manner also helps prevent witnesses from being evasive. The more complex the question, the more important it is for counsel to help witnesses follow this pattern in shaping their response. For example, “You've heard from another witness in this case that regulations were not followed, and that this could have endangered patients' health. Were you aware of this at the time?” could be answered with “At the time of the incident, I had only received a preliminary report and was not aware of the status of regulation compliance.”

2) The curse of the “Yeah, but” response

Witnesses get frustrated by cross-examination when opposing counsel is doing everything in its power to block them from responding with anything but agreement with opposing counsel. Thus, cross-examinations are often filled with a litany of “Isn't it true that . . .” or “Wouldn't you agree that…” style questions. Witnesses buck at being forced to answer something that isn't either entirely true or entirely false, and will respond with “Yes, but . . . “ or “No, but . . .. These answers make witnesses seen defensive to jurors. Enough “Yes, but” or “No, but” responses and jurors, not understanding the trial strategies when phrasing questions, begin to tire of what they perceive as a quarrelsome witness.

The witness who submissively acquiesces to opposing counsel by not challenging this form of questioning poses another set of problems for counsel. The lawyer is obliged to fix the damage by obtaining further, clarifying testimony from the witness. Jurors may then be left wondering why the witness had to be propped up by counsel, making the witness less than credible in the jurors' eyes.

Both of these pet juror peeves can be corrected by encouraging the witness to use a brief qualifying phrase before “yes” or “no” responses. For example, witnesses can respond by using such phrases as “In this situation, yes;” “Under certain circumstances, no;” “At the time, yes;” “Not as I understand it, no.” The key is to keep the qualifying phrase sufficiently brief so as not to appear evasive and to be sure to say the “yes” or “no” after the qualifier so as not to appear non-responsive.

Learning to use the appropriate qualifying phrases naturally takes practice. This is not a technique that can be simply told to witnesses in the hopes they will know how to implement it on the stand. Such hopes will be quickly dashed. Practicing how to use qualifying phrases through question and answer sessions with the witness prior to testimony is the best way to insure their effectiveness.

3) Inappropriate eye contact.

Eye contact can be misused by witnesses to create serious disfavor with jurors. The witness loses credibility by

  1. never looking at the jurors
  2. always looking at the jurors
  3. looking at the witness's lawyer while being cross-examined

Unless they've been on the stand themselves, jurors have little idea of how intimidating and difficult testifying can be. Nonetheless, jurors want and need to see a composed witness who makes natural eye contact with them. To a large extent, jurors determine the veracity of testimony by what they see in witnesses' eyes as they speak. Jurors tend to feel that a witness who does not look at them at least some of the time during their testimony is less than credible. However, witnesses who ignore the lawyers and simply stare at the jurors during their entire testimony can be a jury turn off as well. Jurors feel “played to” rather than communicated with.

Attorneys can train witnesses to properly use eye contact in a way that is pleasing to jurors. The concept is simple. Witnesses should look at the attorney when listening to direct and cross questions and when responses to questions are short. If responses are more than a few words, witnesses should look at the attorney for the first few words of the response, look at the jurors while providing the body of the answer and then conclude by turning their glance back to the attorney. There is a rhythm that comes with practice to make these movements look natural so witnesses do not appear as if they are being manipulated like puppets on a string.

Practice sessions with witnesses are critical to the witness's ability to smoothly and easily achieve a comfortable and natural rhythm in speaking directly to the jurors. During examination, attorneys can use phrases such as, “Will you tell the jurors…” to remind the witness to turn to the jurors while speaking.

Witnesses who look at their own counsel when being cross-examined send a lethal message to the jurors: “I don't know what I'm doing, is this right?” Jurors are put off by such eye contact, and generally feel the witness has been coached to the nth degree and is probably lying. Witnesses should be told to either look at the lawyer asking them questions, or at the jury--nowhere else. The exception is if the judge asks a question or speaks to the witness directly, in which case the witness should immediately direct his or her attention to the judge.

Above all, witnesses should be reassured that jurors are more their allies than their enemies. Jurors see their job as gathering information to make informed decisions. A witness' time on the stand is a critical opportunity to relay facts in a clear, believable manner--thus increasing the probability of a successful case outcome.

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© 2022 Noelle Nelson All Rights Reserved