Setting the Right Foundation for Your Witness Testimony

By Melissa M. Gomez
Special to the Legal

While every witness preparation session I conduct is different depending on the needs, communicative issues and messages of a particular witness, there is one thing that I do with just about every witness. I ask the following question: “If I were a juror in your case, what are the three main things I need to learn from you and your testimony.” The answers are often astonishing.

I have seen defendant doctors answer this question with statements that have nothing to do with the medical treatment they provided, plaintiffs who answer with expert opinions about a product’s liability, and corporate executives who just stare at me blankly, completely floored by the question. The best part is that when I turn to the attorneys to ask what they think are the main messages, the answers are usually better, but it is often clear that they have not thought about these basics for the witness either.

While it is a witness’ primary job to listen to a question and answer that question with literal truth, witnesses must have clear in their minds a foundation of their core messages. This is not to say that we feed them their messages void of their input. Instead, as we talk through their story in their way, we get to their overarching points. It is helping our witnesses get their own thoughts organized in an important way.

When witnesses go into testimony with a point and a perspective of what is truly important, they feel more prepared. When they feel more prepared, they feel more confident. When they feel more confident, they are focused on the question and not on their discomfort. When they are focused on the question, you get better, cleaner and more accurate testimony.

Importantly, discussion of a witness’ core message includes the limitations of witnesses’ messages and what they should leave to the testimony of others. The best examples of this typically concern knowledgeable fact witnesses who don’t know where their fact testimony ends and the expert’s testimony should begin. This is particularly an issue I see with doctor defendants in medical malpractice cases. Take the cardiothoracic surgeon being accused of malpractice in open-heart surgery. Of course he is an expert in the field. In the case of his defense, though (assuming that he is not acting as his own expert, which is quite inadvisable), he must speak solely to what he saw, what he heard, what he thought and what he did in that operating room on that day, based on the foundation of his experience and education. The message of the standard professional practice at that time and what other reasonable physicians would have done should be left for the person counsel has hired as the expert. That is what experts are for.

Do your witnesses a favor. Throw them a life preserver before they have to testify by discussing their core messages. Without a basic foundation of their messages as they fit into the entire case, witnesses flounder and flail in the rough seas of cross-examination.

When preparing for depositions or trial, have a sense of the three specific messages you believe need to come from each witness. During preparation, ask the witness the question above and see if it comports with your perspective. If it does, great. If it doesn’t, discussion needs to ensue to make sure both you and your witness are on the same page and that the messages you are considering for your case really comport with the evidence that will come in through testimony. Again, this is not telling the witness what to say. It is making sure you are presenting your case in a manner that is true to your witness messages and then helping the witness relay that message clearly.

Melissa M. Gomez is a jury consultant and owner of MMG Jury Consulting LLC. She holds a Ph.D. in psychology from the University of Pennsylvania. Her experience includes work on hundreds of jury trials in Philadelphia and across the country, with a focus on the psychology of juror learning, behavior and decision-making. She has more than a decade of expertise in research design and methodology, as well as in behavioral and communication skills training.

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, contact Gomez at [email protected] or call 215-292-7956.

 

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