The Power of Lay Witness Testimony
CORROBORATION OF INJURIES BY LAY WITNESS TESTIMONY
By MICHAEL MAGGIANO, ESQ
My first courtroom experiences were filled with feelings of fear, awe and intimidation. I knew that a good part of these feelings stemmed from my own sense of inadequacy, but the imposing temple-like, non-human environment of some of the first courtrooms I practiced in (and I guess I really mean practice) did not help matters any.
At first, the contradiction of the environment and our purpose as trial lawyer in the courtroom did not strike me and I tried to fit in to match the environment.
Here I was trying to convey to court and jury the suffering of my client in this room with no natural light, nothing growing in it, somber symbols of power throughout, a high priest in a black robe with a hammer sitting far above me, almost as if he was mounted on a precipice. As I faced this ominous figure, to my left side was my adversary who I knew was ready at any moment to shoot his legal arrows at me if I was off base in the slightest. On my other side were eight total strangers; two were somewhat asleep, one kept looking at his watch and the others looked just plain bored and confused.
I always had my facts down pat and with my anal retentive tendencies, proceeded to prove a prima facie case clearly and to the point with legal precision.
So why in this legal arena was I presenting legally competent work and getting mediocre results?
What law school failed to teach me is how the jury views the courtroom, my client and me. We were taught by our law school professors to present the facts in a clinical, unemotional environment. We were taught that we must not do anything to inflame the passions of the “Tryers of Fact.” We were taught that the judge as Law Giver will instruct the jury on the law that must apply to the facts.
Being trained over three rigorous years that this is how it is to be done, my presentations looked like cardboard cut-outs of life rather than the recreation of life itself.
The great truth that is kept from us by law school professors and later those judges who struggle to maintain the austerity of the courtroom is that jurors just do not see it this way. These good citizens who have now been sworn to decide your clients’ fate have not gone through a three-year brain baking process like we have. Yesterday they were at their jobs, in their homes, with their families, and, today they are in a courtroom making a decision that often will have to last your client a lifetime.
The great hidden truth is that jurors do not view the courtroom as a legal arena. They see it as a moral arena. They will be moved by what they believe to be the morally correct thing to do over what the judge says is legally correct. They will rationalize the charge or just disregard it in order to get to where they feel the outcome should be.
Having uncovered the secret that most law professors will not admit to, I began to look at how jurors look more closely at my client and me in this moral arena. What I learned was even more overwhelming. Priding myself on having become a lawyer and passing the Bar, I set out to become a tiger in the courtroom. I fantasized myself as a quick thinking, sharp tongued advocate. So now here I was going from courtroom to courtroom, jury trial to jury trial, sounding like a lawyer, acting like a lawyer, looking like a lawyer. Big Mistake. After all the hard work to look, act and sound that way, I found out that nobody likes lawyers, except when they need one. Worse yet, people disliked personal injury lawyers even more.
I began to realize that if I am to truly be the jury’s guide in this foreign land, if I am to become a credibility figure as I must in a moral arena, if I am to effectively represent the personal injury plaintiff in this anti-lawsuit world fueled by the misinformation and propaganda of the insurance industry, I must change the laboratory atmosphere of the courtroom into a real life experience for the jury. I began to realize that I had to become a storyteller and like most good stories there would have to be a theme, conflict, players in my story, a protagonist and antagonist and a resolution that was morally correct.
I do not believe that today a powerful opening nor a compelling closing will carry the day without putting some beef in the sandwich. The days of jurors just accepting what a lawyer has to say are gone (if those days ever existed).
SUSPECT is how jurors look upon the personal injury claimant.
SUSPECT is how the jury looks upon you asking them to give money for something they cannot see, nor feel — the pain and suffering of your client.
SUSPECT is how the entire public looks upon a system of justice that they believe (although incorrectly) gave a claimant two million dollars for spilling a cup of coffee in her lap.
TRUST is the bridge that must be built between you and the jury.
TRUST is developed gradually through the trial by presenting themes and symbols that represent basic truths to each juror.
TRUST is the fragile but powerful bond that must be created before the jury is ready for your message in summation as to what they must do to make things right.
Now, how is it that you, the Trial Lawyer, move a total stranger from an attitude of suspicion to a feeling of trust? I now believe that it can be done by powerful, centuries old communication tools — one of which I would like to share with you here.
Communication and the Community
If the jury represents the community conscience — and it should, and it does, then the next question is how do we best communicate to the collective conscience we call the jury?
If our presentation is only your client, your doctor and you — today you, lawyer, are in big trouble.
But if different members of the community from different walks of life, some who knew the plaintiff before he became a pained and injured man, and, others who have seen him, or, have come to know him since appear at the temple and speak of and for him, you now have moved your cause to a different plane.
Members of the public and of your community are now speaking to other members (namely the jurors) about a harm that has been wrongly cast upon one of them, an innocent member — of the community of man. Without reaching the “Golden Rule”, the jurors must come away with a sense that “one of us has been wronged and we must correct that.” This is called EMPATHY — that human action of understanding, being sensitive to the hurt of another; it is what makes us stop to help an injured stranger, and, it is indeed what moves jurors.
We must remove our cause from the money game syndrome and give it a purpose greater than the plaintiff himself.
Thus, the community, represented by your lay witnesses, enters this forum and speaks out describing a person who all his life asked for nothing from his peers but the right to live his life, earn a living, raise his family, and who has had these things we all cherish wrongly taken from him. By bringing to the temple members of the community, you have now brought the real world of people into this forum in which the final decision will be made by six real people just like them.
How Jurors Decide Cases
An analog to the concept that jurors view the courtroom as a moral arena is that they do not decide cases on the facts, but on their perception of the facts — each jurors’ own vision or version of reality. Facts are filtered through each person’s individual picture of his world based on his life experience. Knowing this we must review a few important concepts of communication strategy so as to decide the best witnesses to speak for your client.
Picking Your Witnesses
Will the jurors perceive your witnesses as truthful? The sad reality is that whether a witness is lying or not does not matter in the Courtroom battle over credibility. What does matter is whether the jury is going to perceive your witness as telling the truth. All too many times the truthful witness, either because of negative external cues such as nervousness, body tics, negative hand gestures or movement, voice dropping, rapid eye movements, zero eye contact, his general physical characteristics, appearance, dress and body language may be perceived as the liar. It is the perception of reality that carries your cause, not necessarily reality. We have all been warned so many times that the media is the message. Courtroom persuasion is 55% nonverbal. Does this mean that we should pick our witnesses only from central casting? Not quite, but if you do not spend time grooming your witnesses, teaching them Power Communication, the contents of their important message may be drowned out by a negative delivery system.
We Human Beings are a combination of nature and nurture. We are the some and substance of our individual life experiences and no matter what the Judge tells the jury, they bring all their life baggage into the jury box and jury room. “Of course we can give him a fair trial before we hang ‘em.” Jurors come to the courtroom with their own unchangeable belief systems. Each of our individual models of the world are filled with generalizations and stereotypes. Whenever a decision gets tough and the hour is growing late, we fall back on these subjective and unreliable criteria to come to a decision. It may not be the right decision but preconceived thought, generalizations and stereotypes help us rationalize a position, and, taking a position alleviates anxiety. We make all kinds of decisions this way, from electing presidents to suspecting them of misdeeds, all based on how they look and sound. Jurors in the unfamiliar and intimidating setting of the courtroom will fall back on their belief systems to make decisions. The use of pre-conceived thoughts, ideas, stereotypes and generalizations helps the jurors make decisions within a comfort zone and thus reduce their situational anxiety. Therefore, we must take into account what are their general beliefs, how will jurors view our client, this type of case; and how, if need be, can we change or enhance those beliefs and views of our client and our cause by the themes and analogies we deliver in Opening and through the lay witnesses we present as characters in our moral story.
Similarity = Credibility
People are more easily influenced by a person they perceive as similar to themselves. We search for similarity. We are comfortable with people who are like us. Invariably, “liking” is a key factor in the decision-making process. And, “liking” is a function of the unconscious mind. If your jurors perceive your witnesses and you as similar, particularly on the unconscious level, you greatly increase the chance of the jurors voting your way. People are more easily influenced when they perceive the source of information as credible. If the jury perceives your witnesses as similar to them, you have taken one big step up the credibility ladder.
Credibility, is affected by the way a message is structured and delivered and of course by whom the messenger is. It is important that the message from the witness be simple and direct. Do not require too much of one witness. Each is an important piece of colored glass that goes into your mosaic which will tell your clients’ story. Evaluate each witness as to how clearly they convey their part of the story, is he or she likeable, empathetic, sincere, and trustworthy and how does he or she relate to your particular jurors? Moreover, if you are lucky enough to find a dynamic spokesperson as a witness, that witness will serve you well in that effective mood transference to the jurors.
The classic case of nonverbal communication by a witness took place when E. Bennett Williams brought heavyweight boxing champ, Joe Louis into the Courtroom during the Jimmy Hoffa trial. This was a tough trial for Mr. Williams. Bobby Kennedy was known to have remarked that if Mr. Williams wins this case, Kennedy would parachute off the dome of the Capitol Building. At that time, Joe Louis was still an icon in the boxing world and an idol of most African American men. As the imposing Louis was sitting in the courtroom one afternoon and in the presence of the all black jury, Hoffa walked into the courtroom and came to where Louis was seated, on an aisle seat. Hoffa patted a hand on one of the Champ’s huge shoulders. Louis warmly put his hand on Hoffa’s arm, and the two chatted like old friends. One juror was noted to have elbowed his neighbor and pointed to this friendly scene of the Brown Bomber and the Teamster Leader. Clearly the scene had caught the attention and admiration of the jurors. Granted it is usually not from one incident does a verdict result but Hoffa was acquitted and Mr. Williams promptly sent Mr. Kennedy a parachute.
Now, I recognize we all do not have Joe Louis’ waiting in the wings, but think twice about who is on your jury and what witnesses carry what symbols into your case and courtroom.
The lesson Mr. Williams taught is that the message of each witness does not necessarily come from the witness stand. But when it does come, it should be strong and in positive terms.
In most cases, the message should be focused on the issue and the message should be repeated. Strong language should be used; positive not weak. The infamous audible pause “ah” must be avoided by one and all. Weakening language, such as “I think”, “My guess is,” “I would say,” “probably true,” “my practice is…” are credibility killers and must be worked out of your witnesses’ manner of speaking.
Total Witness Analysis
To determine what lay witnesses you require, ask what is your case about and what is the average person’s perception to such a matter. In your total witness analysis ask the following questions:
(a) Why is this witness important to your case?
(b) Where does his testimony fit in?
(c) What case theme is enhanced by his testimony?
What point of law or issue of fact is established by his or her testimony?
Why am I presenting this witness? Is there a better witness?
What baggage does this witness carry that will hurt us?
How can we turn any negatives into positives as to this witness?
What are the prior statements of the witness and where may they be found?
Has the witness said anything in the past which is inconsistent with that which it is intended he will say at deposition and trial?
What halo effect can be placed upon the witness in terms of foundation, prior history or conduct and conduct in this case?
What real or demonstrative evidence will the witness be the proponent of and why? What purpose does the evidence serve and how will the witness best serve in its persuasive presentation?
Opinions: What opinions are expected to be elicited from this witness? Are all issues of competency and/or qualification satisfied? Will his testimony be considered cumulative to that already presented?
Facts: Was the witness in a position to perceive the facts he is expected to testify upon?
There is something very interesting that takes place about your case and your client when just plain folk, a neighbor, a co-worker, the postman, the local butcher, a member from the local bowling or softball league come into court and speak about what your client was like and what he has become.
Rather than have your client talk about all the things he used to do that he cannot any longer do, have others speak to those problems for him. Rather than he be viewed as a complaining man, place him as a cameo surrounded by testimonials. He now becomes a stoic, a man who only wants to regain his life, and, continues to hope for better days. As the community speaks for him, so will the jury.
Recall the old quote “fifty thousand Frenchmen cannot be wrong.” Open the doors to the courthouse and bring in the people and let them speak for the victim.