BY: MERRIE JO PITERA, PH.D. – CEO
What witnesses say through the course of their testimony can make or break counsel’s ability to effectively argue a case. While a witness may have excellent credentials and a persuasive message to tell, his/her display of certain undesirable characteristics can cause jurors to not believe the witness, even when he/she is telling the truth.
From our experience with witness evaluation focus groups, hundreds of mock trials, our post- trial interviews with jurors and a growing body of communications research, we have identified a set of undesirable characteristics that decreases a witness’s credibility and believability. It is important to identify these characteristics for witnesses and work with them to maximize their credibility. Achieving balance, relevance and consistency in witnesses’ verbal communication enhances the credibility of their testimony at trial.
• Evasive = Hiding Something. Witnesses who are viewed as “evasive” lose credibility with jurors. Jurors broadly define “evasive” witnesses as those who, for example: 1) do not directly answer the question, “dance around” or avoid the question being asked
(e.g., cross-examination questions regarding warnings, testing, etc.); 2) hesitate before answering; and 3) change responses or behavior from direct to cross-examination.
Jurors interpret these behaviors, singularly or in combination, as the witness’s attempt to hide something. When preparing your witnesses for direct and cross-examination Q&A, we suggest attention be directed at identifying and eliminating the following “evasive” patterns of response.
• The Verbose Answer. Jurors criticize answers that are “verbose,” “long-winded” and too technical. Jurors like answers that are relevant to the question. The inability of a witness to keep answers focused and on-task leaves jurors unable to comprehend the witness’s message.
One way to build the credibility of the evasive or verbose witness is to limit and focus his/her answers on the questions actually being asked. Keeping his/her answers short and avoiding technical jargon will help to increase jurors’ comprehension of the
message. One suggestion for witness preparation is to review the three main messages for the witness’s testimony. This will help to focus and limit the scope of the witness’s testimony to only the most necessary and/or relevant points. Further, witnesses who are aware of their three main points often feel that they have a “safe harbor” to return to in instances where opposing counsel tries to lead them astray.
• Limit the Technical Jargon. While the use of industry terminology gives the impression the witness is knowledgeable, if used excessively and without proper explanation, it can alienate the witness from the jury. In addition, based on our pre-trial experience and exit interviews, jurors will either tune out or discount testimony they have difficulty understanding. We suggest working with technical witnesses to use explanations that are more “jury friendly.”
- Another fundamental guideline for witnesses is to “know your audience.” Many corporate and expert witnesses are often comfortably engaged in conversations with peers, corporate executives or even testifying before Congress. However, if one of these witnesses uses that level of sophisticated vocabulary or jargon in his/her answers, the message may be lost on the average juror. It will be important to educate your witnesses on the expected demographic characteristics of your jury panel and how they will need to modify their style of testimony accordingly. A lesson in audience analysis may help your witness understand how his/her behaviors will need to be adjusted to meet the jury’s expectations.
- One cautionary note associated with a witness who defaults to using technical jargon is that jurors may perceive him/her as “talking down” to them when the witness tries to simplify his/her message. Sometimes an expert witness “dumbs the message down” to a point that becomes condescending to the jurors. Therefore, it is a balancing act between being too technical, while at the same time not being too simple or demeaning.
• Prepare to Answer the Tough Questions. It is clear from jurors’ witness evaluations that a witness’s credibility is negatively affected when s/he faces the tough questions from opposing counsel. If a witness either hesitates or “pushes back” on his/her answers (also known by jurors as “dancing around the answer”), these behaviors draw undue attention to the issues in question and identify potential vulnerabilities for your case in the minds of jurors. An example of one of these questions is, in a pharmaceutical products liability case, asking the witness whether s/he would take the medication at issue in the case or allow one of his/her loved ones to take the drug. Jurors reason that a demonstration of such commitment to take the drug, despite the opposing side’s allegations or concerns, would prove the witness’s conviction to his/her position and lend credence to the argument that the medication is safe. Therefore, it is imperative that a company or expert witness be committed to answering this question
firmly and without hesitation. When preparing your witnesses for deposition or trial, if not already compiled, we recommend developing a continuing list of the very uncomfortable, difficult questions witnesses might face. The obvious next step would be to prepare the witnesses to answer these questions thematically and with little to no hesitation.
• Lack of Internal Consistency among Witnesses’ Testimony. At trial, counsel tends to have a long list of witnesses, much like a major league batting line-up. When you have a number of witnesses being viewed over multiple days, back-to-back, jurors are
quick to notice when one witness’s testimony contradicts that of another. For example, if witnesses have differing timelines regarding when the company knew about an issue and/or let the public know, jurors could perceive this difference as the witnesses’ lying or covering up. As we are sure you are aware, it is important to the credibility and believability of the company’s case to monitor witnesses’ testimony to ensure each is not contradicting the testimony of another, contradicting existing graphics key to your case, etc.
• Lack of Familiarity with Documents. Two overarching positive factors that influence jurors’ perception of a witness’s credibility are appearing knowledgeable on the topic and speaking confidently. Therefore, when a witness appears to be unfamiliar with some of the documents s/he is reviewing, regardless of whether the opposing counsel is “fishing
for information” or attempting to make the witness appear unknowledgeable, it is important for a witness to be familiar with the universe of documents s/he might see and to prepare him/her thematically, if appropriate, to cue jurors that documents s/he is not familiar with are documents s/he has not encountered as part of his/her day-to-day role.
• Powerless Speech. Powerless speech is defined by the presence of linguistic speech markers such as hedges (e.g., “kinda,” “sort of”), vocal fillers/hesitations (e.g., “well,” “ah,” “um”), disclaimers (e.g., “this might be a bad idea…”) and tag questions
(e.g., “…don’t you think?”). A witness who engages in powerless speech is perceived as “unsure,” which is translated into a perception that s/he is less believable. Scholarly communications literature informs us that women tend to engage in powerless speech more frequently than men, due in part to society’s socialization of women’s and men’s roles. Once ingrained as part of someone’s sensibility, these linguistic cues are difficult to overcome. However, once a witness is self-aware of these cues, this type of speech pattern can be reduced with practice.
- Tag Phrases. When witnesses use phrases such as “to be honest” and “to be frank,” they beg the question of whether they were telling the truth or being frank prior to this statement being uttered. In addition, witnesses should avoid using phrases such as: “I think,” “I believe,” “maybe” and “perhaps.” This framing of a witness’s answer conveys uncertainty and a lack of command of the subject matter. Avoidance of these types of qualifying phrases is recommended.
- Social Fillers. The use of “um” is a socialized vocal filler; that is, we have learned in conversation that when there is a silent pause when talking, it is an indication for someone to interrupt. Therefore, to ensure a person who is talking “keeps the floor” without interruption, that person engages vocal fillers (e.g., “um,” “ah”). This socialized habit can be reduced with self-awareness, practice and a strong command of the subject matter.
Your ability to identify and curtail these negative, verbal witness characteristics will only serve to build your witnesses’ confidence and strengthen your case overall
About the Author
Dr. Pitera presented this paper at the SEAK National Expert Witness Conference April 27-28, 2019 in Clearwater Beach, Florida.