Source of article The Advantage Blog - Tsongas Litigation Consulting.
The Radiolab spinoff podcast More Perfect recently aired an episode titled The Imperfect Plaintiffs, detailing the case of Lawrence v. Texas, a landmark Supreme Court case that evaluated the constitutionality of anti-sodomy laws. (If you haven’t heard of More Perfect, each episode uncovers the lesser-known details of a landmark Supreme Court case. Take a listen and test your knowledge.) The episode explains “test case litigation.” In test case litigation, the goal of certain individuals or groups of political activists is to overturn, or find unconstitutional, some law that’s currently on the books. However, in order to do so, they need to find a “test case,” or a plaintiff who this law has affected to be the face of the case. Bringing a “test case” to the courts increases the likelihood of widespread legislative change.
In the case of Lawrence v. Texas, John Lawrence and Tyron Garner had been arrested and charged with violating the Texas Homosexual Conduct Law. Gay rights activists quickly identified this as the perfect test case to challenge this type of law as they appealed all the way to the Supreme Court. However, although this may have been the perfect test case, the activists’ opinion was that Lawrence and Garner were not what they considered “the perfect plaintiffs.” They had both been convicted of crimes, weren’t romantically involved, and weren’t political. They had no interest in being involved in the case and had to be convinced to do so by the activists. In the end, it was one of the most important, most influential cases ever heard by the Supreme Court for LGBT rights. But this was certainly not a role the two plaintiffs had intended for themselves.
So what do you do when you have a “less than perfect” client or witness? And what makes a client or witness less than perfect? Jurors’ evaluations of witnesses involve assessing their credibility. They evaluate characteristics like competence, confidence, knowledge, trustworthiness, and likability as elements of credibility. Take likeability, for example. It seems superficial, but if the judge or jury doesn’t like your client or witness, their ability to persuade is impeded. In the late Justice Antonin Scalia’s book, Making Your Case: The Art of Persuading Judges, Scalia wrote, “Some people are inherently likeable. If you’re not – work on it. It may even improve your social life.”
How do you make your client more credible if they are doing something inherently, not? The key is in identifying what will be seen unfavorably by the jury, then preparing them to either change or avoid those few key areas. If they are harboring anger, undue guilt, nerves, or anxiety, they need to work through those things before taking the stand, and ideally, even before they step foot in the courtroom (see our previous blog post Jurors are Always Watching…and Making Judgments). The list below includes both nonverbal and verbal messages to evaluate before the start of trial.
What is their body language saying?
Mock and shadow jury deliberations reveal that jurors’ actively look to nonverbal cues to assess credibility. They listen to vocal cues to determine if the witness is nervous. They look at eye contact to see if they can spot a liar. They watch body positions as indicators of arrogance. Right or wrong, jurors make judgements about witnesses based on how they look and sound. The trouble lies in the fact that often nonverbal behaviors that cue nervousness, for example, are the same cues that cue dishonesty. Similarly, a witness who is trying to be very “professional” on the stand may come across as cold and uncaring.
Misinformation sent from a witness is particularly damaging when that witness is the face of the case, or represents the heart of the issues in the case (such as the case with Lawrence and Garner). Practice controlling inadvertent nonverbal behavior that lowers credibility and replacing it with high-credibility cues. Witnesses who swivel and twist in their chair should practice having a strong foundation on the floor to discourage movement. Those who answer questions too quickly after they are asked need to practice waiting a beat to collect their thoughts. Watching your witness during a preparation session with an eye toward nonverbal behavior will likely reveal these nonverbal credibility crushers.
What are they actually saying?
It’s no surprise that what the witness actually says on the stand will also impact their credibility. Language choice is important, and can send a message of being open and honest, or deceptive and defensive. In the Lawrence v. Texas case, activists asked the plaintiffs to direct all questions from the media to their attorneys. But the one time Garner did speak to the media, he simply shouted, “We didn’t do anything wrong!” Of course, this was his denial that he and Lawrence had been engaged in relations on the day they were arrested, but he was misunderstood by the media as leading the charge for gay rights. In this case, the misunderstanding was positive for the activists and attorneys who were driving the case forward, but in most cases, misstatements by your witness will surely damage their credibility.
Going over practice testimony aloud is a great way to practice the witness’ use of language. It forces them to think about the words they use, which words may be more accurate in their testimony, and start to reframe negative language with positive language. Just like practicing job interview questions aloud will help hone in on the language needed in the interview, answering direct and cross examination questions aloud will tighten up a witness’ testimony.
Litigating cases would be made that much easier if your client was always an A+ in the eyes of the jury. However, even with a “less than perfect” client or witness, there are ways to improve the performance and preparation before the start of trial.