By Jocelyn Cinquino
Special to the Legal
All too often we are presented with the challenge of a difficult witness who seems intent on doing more damage than good for the case. It’s the corporate executive impatient with being on the receiving end of a question. It’s the medical professional personally offended by having his or her care criticized. It’s the person scared to the point of anger who doesn’t understand why he or she is involved in the case and is afraid of the outcome. So talk in trial prep goes along the lines of, “How can we make sure this person does the least damage to our case?” instead of, “How can we use them to support our case?”
But what if the witness is actually much different than he or she first lets on? It doesn’t happen all the time, but often enough that it’s worth the effort it takes to find out. Remembering to ask about the witness’ background before you get too far into the case claims can explain a lot of negative attitudes and behaviors.
A great example of this came from a recent medical malpractice case. Dr. X was deposed and even he admitted he had a bad attitude. He was less than cordial, acted too smart for his own good and was disinterested in the process – characteristics that only served to back the plaintiff’s assertion that he provided substandard care. It became questionable how he could support his own defense at trial. Good thing the team gave preparation with him one last try. He communicated so well on the stand that he ran out of business cards at the end of trial from jurors looking to schedule appointments.
So, how did he get there? From the team asking him all the right questions that didn’t have anything to do with what the case was about — or so it seemed. Turns out this doctor was extremely compassionate and as a result was so personally connected to his patients that he could not even begin to imagine being “accused” of doing his patients wrong. The claim made him sad and rather than appear hurt, he went in the opposite direction and made it appear he felt nothing.
Recognizing there had to be a reason for this behavior, the team took a few minutes to step back from the claims and ask him, “Why did you get into this area of specialization?” and “What’s special about your practice in particular?” Such basic questions allowed him to step outside the negativity of the case and reconnect to what made him feel positive about his practice and confident in his care. It also helped clue the trial team into how effective it would be to position themselves as part of the witness’ team in the effort to overcome the claim. This helped build enough rapport so that the witness could let go of anxiety, trust them when testifying and let his true personality become evident.
It’s also important to stay alert for any personal issues a witness might be experiencing that impact how he or she manages his or her testimony. Maybe he or she is going through a divorce, change in job or some other life event that starts to make its way into how he or she feels about the present case. It is OK if you can’t (and often times you shouldn’t) ask about such issues directly right off the bat. If they are important enough factors that they are clouding your witness’ ability to testify, he or she will drop hints for you along the way.
It can be uncomfortable and take some patience to start with these kinds of questions in prep rather than just jump into the reason why you are all there. But unless you do, you could miss out on something great in your witness and something valuable for your case.
Jocelyn Cinquino is a jury consultant with MMG Jury Consulting. She holds a J.D. from Suffolk University Law School and an M.A. in forensic psychology from John Jay College of Criminal Justice. For more than 10 years, her expertise in forensic psychology and law has been applied to civil and criminal cases throughout the country. Her work includes a specialization in complex jury research design and analysis, case development and advanced trial preparation including witness communication training, voir dire consultation and jury selection strategy.
This posting is for general informational purposes only and should not be construed or interpreted as advice specific to any matter. Each case is different and no strategy applies uniformly to all. If you have any questions regarding jury psychology that you would like to see addressed in this blog, please contact Cinquino at jocelyn@mmgjury.com or call 917-733-0770.
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