legal advice

The trial lawyer’s job is to know the Law and artfully apply it as it pertains to the case at hand. The lawyer's concern is the development of a cogent theory and the use of affective themes to sway the jury to their point of view. Both theory and themes are based, in part, on information learned from their client and depends on the client’s clear, precise and persuasive testimony. “Just be yourself,” the attorney often suggests. “Just tell the truth.” “Just relax.” With such simple and clear advice, why then are otherwise intelligent men and women (including professionals with expert witness experience) racked by fear at the thought of testifying on their own behalf? Why does a normally compassionate person appear flat and uncaring on the stand? Or a person known for her precision and attention to detail become forgetful and confused? Perhaps the command “Be Yourself,” requires more – more knowledge, more understanding and more depth of purpose.
In truth, most attorneys don’t stop with the simple “Be Yourself,” or “Just relax and tell the truth” commands. Most add a seemingly helpful list of “Make sure to appear strong and confident but don’t be arrogant.” “Just answer ‘yes’ or ‘no’ during cross examination and don’t argue about a point.” “I can’t help you out on direct so make sure you explain everything.” “Talk to the jury, I want them to get to know you.” After a preparation session such as this - usually scheduled on the eve of trial – it is not surprising that a normally confident professional can be reduced to spinning a circular loop of self-limiting thoughts up to and including his time on the stand. Preparation of this kind, as well-meaning as it might be, does very little, if anything, to support the needs of the witness. Granted, the attorney has certain testimony requirements to support his theory and themes. The problem develops when a client is expected to slip into a predesigned slot and act as the control gear in an elaborately constructed system of wheels and pulleys.
Not all witnesses fall apart in the courtroom. Not all witnesses make blunders during deposition that pose additional problems at trial. But some witnesses have a case that is complex enough or their presence is commanding enough that the success or failure of the case largely depends on the jurors’ reactions to them. These are the cases for which a Courtroom Behaviorist plays a crucial role.
There is nothing ordinary, customary or natural about courtroom communication. Courtroom communication is different from most other communication in that the sender is not in direct communication with the receiver. During a jury trial there are many senders – the judge, the attorneys and the witnesses. The only receivers, however, are the members of the jury. The witness must understand the jurors and communicate in such a way that he will be understood. But the witness has no idea who will serve on his jury until after voir dire.
True, the specific jurors are unknown however; the general experience of jury service is known. The witness must understand the general experience that has gathered the jurors in service of his case. He must understand the mental and emotional shaping that takes place in preparation for service and how that affects their views and attitudes during service. Once a witness examines and understands the jurors’ experience, his own point of view and attitude adjusts. As the witness recognizes that all actions, attitudes, nuances and language must be shaped to pass through the jury filter – the only material receivers in the courtroom – his focus matures. As he applies that focus to each aspect of the trial he develops the ability to move from self-conscious, self-sabotaging behavior to other-conscious, self-supporting behavior. In other words – he learns how to “be himself.”
Speaking in public is the number-one fear of most human beings, for many surpassing the fear of snakes. Potential jurors are no exception. As the witness slips into the mindset of the juror – recognizing the subtle anxiety present for each juror as they responds to counsel’s inquiries – the witness can understand that outward signs of judgment from the witness (even when benignly dealt) can prejudice the juror against the witness. Innocent actions such as; taking notes, disregarding a jurors’ comments or whispering to her attorney while a juror is speaking, can all be construed as negative judgment by the anxious juror. Such a juror may be inclined to consider (consciously or not) turn-about as fair play.
Instead, the witness must prepare by asking himself a series of questions. How do I want to be perceived by the jurors? During deliberation, what words would I ideally like the jurors to use when describing me? In the same way that a traveler must first decide on a destination before he can map his journey, a witness must decide what aspects of her personality are most supportive of the attorneys’ theme and her own truth. What qualities do I possess that the jurors must experience in order to believe the attorney’s theory and my testimony? Once the witness has narrowed her list of critical qualities to three or four, she can use them to create an intention statement, a self-describing statement that calls her true self to the fore. Repeating her personal intention statement will keep her on track, reminding her subconscious mind of her true qualities and encouraging her subtle actions to more accurately represent the person she is, not the person opposing counsel describes.
What conclusion must the jurors come to in order to find on my behalf? As with all decisions there is a final element that creates cohesiveness and sways our convictions toward our ultimate decision. Define that final element. By understanding what the jurors must feel, see or in some way experience as the final step to their conclusions the witness identifies for himself a quality that will be supported by his intention statement.
What actions – actual and described – will lead the jurors toward my intended conclusion? The jury must see and experience the witness as the person he says he is. The jurors measure the words the witness uses, the attitude he carries and his described actions against what is said about him.
How can I define my personal involvement in three short statements? The jurors must understand the witness’s role. By reducing the complexities to three short interrelated statements the witness clarifies her thought process. She finds that all details fall neatly under one of the three and her feelings and reactions to each becomes more clearly defined. The witness will find numerous opportunities to insert these statements into her testimony.
In my opinion, what is the most important obstacle the jurors must traverse if they are to come to my intended conclusion? If the witness is a health care professional the jurors must feel safe with him. In order for the jurors to support him fully they must say to themselves, “I would feel safe in this person’s hands. I would place my wife, husband, child, mother in the care of this person.” The lay witness must pass through a filter of reasonableness. The jury measures the experience of the lay witness as if it were himself, “If I was met with this set of circumstances, how would I react?”
What is my personal viewpoint regarding this case? How do I see the events that have led to the current conflict? The witness may have an opinion that has not been expressed. Holding an unvoiced opinion may prove counter productive as it has a way of seeping into the witness’s testimony. Feelings of guilt affect the way a witness relates to the jury and may compromise her testimony. The witness must live his intention statement. Feelings of guilt or shame or fear or anger cannot coexist with the truth in the intention statement. The witness must do what needs to be done to resolve any conflicting feelings she may carry.
I’ve periodically worked with a client who did not like his attorney or an attorney who confided his dislike of the client. While lasting friendship may not be essential, teamwork is. The entire trial fits together as a collection of important pieces. The witness is a vitally important piece, controlled by how he thinks, what he says and how he relates to jurors. After months or years of developed fear or anger the witness deserves the support required to transform into an asset for the case. With help he can effectively become himself.
“I have been a Courtroom Behaviorist since 1979 when, through an act of other-worldly guidance, I began teaching attorneys (using my background in theatre and psychology) courtroom presentation skills. After seven years of teaching seminars and assisting in the development of cases from Colorado to Wisconsin to Texas to California, I extended my practice to trial preparation for key witnesses. Over the many years and thousands of clients since that time I’ve devised (and re-devised) ways to help witnesses effectively present themselves and communicate their testimony. Lawsuits are unpleasant, time devouring, self-esteem depleting processes. My goal is to streamline the process toward a confident, clear and concise presentation. - Glynn Bedington, Courtroom Behaviorist