During a trial, the attorneys have an opportunity to set the scene through their openings, but the real storytelling must be accomplished through the witnesses who testify. The lawyers may know the story they want to tell, but nothing the lawyer says in court is evidence. As the judge will remind the jurors, only the witnesses’ testimony and admitted exhibits count as evidence.
Trials cannot be perfectly scripted, if for no other reason than the other side will attempt to tell its own version of the story. One effect of this reality is the risk that neither side’s narrative breaks through to the jury, leaving the jury without a basis to determine which version is more credible. Another obstacle is that, no matter how prepared your team is for trial, witnesses can say unexpected things. The other side’s witnesses will suddenly remember key details they didn’t recall during their deposition. A key witness who was confident and knowledgeable during preparation might come across as hesitant or unsure. A great trial lawyer, however, expects all of these challenges and plans for them in her trial preparation.
Know Your Storytellers
Putting your trial plan together begins with identifying your key storytellers among your witnesses. Your storytellers need to be knowledgeable of the important facts, will relate well to the jury, and are trustworthy. In a corporate organization, they aren’t always the most senior individuals, but the jury will recognize them as honest and interested in making sure the jurors have the information they need to render a verdict.
Your attorney’s job is to give these witnesses the opportunity to shine. On direct examination, jury wants to hear from the witness, not the lawyer. The lawyer’s role instead is to guide the witness’s testimony toward the key points the jury needs to hear and to make sure the questioning provides the cues the jury needs to understand the most critical parts of the information the witness is offering.
A great attorney also knows when and how to “take the sting” out of the other side’s best attacks on your key witnesses. For example, sometimes it is best to address any shortcomings in the witness’s scope of knowledge, or to state plainly what the witness’s relationships to the various parties in the case are up front so the other side cannot use these facts effectively to undercut your witness’s testimony on cross-examination.
Witnesses who come across as fair, honest, helpful, and knowledgeable humanize your case and make lasting positive impressions on the jury. These witnesses are the most effective storytellers and a great lawyer will be effective at identifying them before trial and deploying them strategically to advance your case. The best trial lawyers know, however, that trials never go exactly according to plan. Sometimes a witness who did great in prep comes across as nervous and fails to make a connection with the jury. Sometimes a witness you expected to play a minor role shines on the stand. In those situations, trial lawyers need to be able to adapt and improvise. If a witness you expect to make your key points can’t quite pull it off, your attorney needs to know who else has the knowledge necessary to get the job done.
Preventing the Other Side from Making a Compelling Case
On cross examination, your attorney needs to undercut your adversary’s ability to tell their story. That means finding and exposing the weaknesses in their key witnesses’ testimony. This is why it is so critical for attorneys to take the depositions of the witnesses the other side will rely on, especially if you won’t like their testimony. The upsides to taking those tough depositions include previewing the other side’s evidence and the fact that the witness’s testimony is now locked in; if they try to stray from it at trial, your attorney can present the inconsistent statements from the deposition to undermine the witness’s credibility with the jury.
Unlike direct examinations, on cross-examination of the other side’s witnesses, your attorney can ask leading questions (the sort that begin, “Isn’t it true that…”). The dynamic on cross examination can be very different from direct. During a cross-examination, the lawyer becomes the protagonist and a great trial lawyer reduces the witness to either agreeing or disagreeing with the attorney. This gives your lawyer a great deal of control in terms of what the jury hears from the witness.
Experienced trial attorneys know what they want to accomplish with each witness on cross and keep their examination tightly focused. They may identify inconsistencies in the witness’s story over time or emphasize evidence showing the witness is not credible or biased. They can also ask questions that show the witness is potentially misremembering or has less knowledge than it appears.
Should Your Lawyer Tell the Story Through the Other Side’s Witnesses?
Depending on adverse witnesses to tell your story is a high-risk gamble. The witness is almost certain to resist cooperating and may try to give evasive, conditional, or unclear answers. Given the adverse witnesses were not prepared by your attorney and have no incentive to be cooperative, predicting how they will react to the effort to turn them into your storyteller is difficult.
If your lawyer is struggling to get the witness to give clear and responsive answers, the jury may lose interest in the testimony or may fail to understand its significance. Even if your attorney eventually succeeds in getting the witness to concede an important point, it may be hard for the jury to recognize the importance of the testimony.
Conclusion
Working with your attorney to identify the key storytellers to present your case is a critical part of trial preparation. Your lawyer should also be focused on determining who the other side’s storytellers are likely to be and identifying the strategies to prevent them from being effective. Our trial attorneys have handled hundreds of cases, working with witnesses from the very beginning of litigation, as well as jumping in at the last minute as substitute counsel to try a case. Our skill at identifying the key storytellers and helping them prepare for their testimony has led to outstanding results for our clients across a broad range of matters, from white collar criminal defense to intellectual property cases to breach of contract and business dissolution litigation. Bring us your toughest case, we’ll get the job done.