Updated: Jun 19, 2020
If I’ve seen it once, I’ve seen it a thousand times. Under cross-examination, the witness starts out with good demeanor, body language, and voice tone. He seems professional, credible, and likable. But then something happens. As the examination wears on, the questions become tougher: the attorney doesn’t ask “necessary” follow-up questions, the witness tries to explain his answers and gets “reprimanded” by the attorney, and the questions seem to be worded unfairly. Now the witness is frustrated—and it starts to show. He starts rolling his eyes at the questions, he furrows his brow, shakes his head in annoyance, and he responds sarcastically. Things aren't going so well for the witness, but he sees it differently—he thinks he's winning, so he continues.
Whether it’s a highly credentialed expert witness (charging $750/hour), a 30(b)(6) witness testifying on behalf of a Fortune 500 company, a physician testifying as a defendant in a medical-malpractice case, a truck driver, or a construction worker, no one seems to be immune to this sequence. And, it seems highly intelligent witnesses are particularly prone to reacting this way.
What's Going On?
The witness thinks he's accomplishing something by the way he's responding to opposing counsel. It's true he's accomplishing something, but it happens to be the opposite of what he thinks.
What the Witness Is Thinking:
1. When I roll my eyes, the jury will understand that the question is stupid.
2. When I respond with sarcasm, the jury will understand that the question is ridiculous.
3. When I shake my head in disgust, the jury will also be disgusted by the attorney.
4. When I act annoyed with the questions, the jury will be annoyed with the questions.
5. When I force an explanation, the jury will appreciate it.
What the Jury Is Thinking:
1. Why is this witness so unprofessional?
2. Why won't he just answer the question and quit trying to argue?
3. Why is this witness wasting our time?
4. This witness doesn't want to be here.
5. I don't like this witness.
6. I don't want to listen to this witness.
7. I don't care what this witness has to say.
The truth is that jurors allow lawyers a lot of latitude with respect to their in-court behavior. In fact, they expect strong advocacy from the lawyers—including some heated questioning. It's not the same for witnesses: jurors expect them to act professionally by demonstrating good demeanor, body language, tone of voice, and facial expressions. They also want witnesses to be respectful, calm under pressure, and cooperative. (Note: This doesn't mean the witness shouldn't disagree with the opposing counsel; they should when necessary, and they should with firmness; however, it means they should not fight the process.) When witnesses fail at the body language/demeanor/attitude part of their testimony, they play right into the hands of opposing counsel—and they destroy any goodwill they might have previously had with the jury. (Click here to learn how witnesses should handle themselves under cross-examination.)
Testifying is difficult, and it takes education and practice to do it well. Before any witness testifies, he or she needs to be taught about juror expectations, how to communicate in an adversarial setting, how to remain calm under pressure, how to disagree respectfully, and much more. Then they need to practice testifying under rigorous and realistic questioning, with the right kind of feedback given at the right time. When this is done correctly, witnesses can not only survive, but thrive cross-examination.
For more information on how to improve witness preparation, check out the following posts:
Jeff Dougherty, M.S.
President - Litigation IQ
713 392 8135