Chapter 16

• Jurisdiction: United States

Chapter 16 Why Should I Believe Anything You Say? Plaintiff Direct Examination

To be persuasive we must be believable; to be believable we must be credible; to be credible we must be truthful. It is as simple as that.

—Edward R. Morrow, television journalist and Director of U.S. Information Agency (1908-1965)

Great advocacy is not limited to when trial lawyers speak directly to the jury. Witness examination is just as crucial. The title of this chapter is the question: "Why should I believe anything you say?" That's what every juror is thinking when the plaintiff starts testifying. It is not enough that the plaintiff provides facts; careful structuring of the direct examination is required to build credibility and comprehension.

The plaintiff's testimony must be interesting, memorable and believable. In chapter 14 ("Finding Shared Values of Liberals and Conservatives"), we explored how trial lawyers can create a frame that resonates with the different cognitive processes of liberals and conservatives. That frame, which is introduced in opening statement, must be nourished in the direct examination of the plaintiff.

At the outset of the plaintiff's testimony, the jurors are already skeptical—suspicious actually. This is a normal reaction. There are at least two forces in play: trust issues, which are psychological, and anti-plaintiff bias, which is sociological. Both of these must be recognized and dealt with. But before we begin the "how to" of structuring plaintiff direct examination, it is important to understand and apply the science behind credibility.

The first step toward believability is that the jury see the plaintiff as part of the in-group. In other words, "one of us." The next step is to overcome the natural skepticism that everyone feels when required to decide whether to believe what is being advocated. The final step is to counter the negative bias and suspicion borne of the stereotypes that plaintiffs are greedy and will lie or exaggerate. But none of these steps will be effective unless the direct examination is structured so that the jurors can understand and process the testimony.

The lament of a trial lawyer whose case resulted in an unfavorable verdict is often, "Weren't they listening?" The problem may not have been that the jurors were not listening; rather, they were not learning. Chapter 7 ("Attention, Memory, and Curiosity") included an examination of the theories of John Medina in which he discovered that his students' ability to retain information was affected by their level of attention and interest. And chapter 5 ("The Science of Jury Education") explained that learning occurs only if the listener understands what is said, processes the information, and is able to store it in long-term memory. Chapter 8 ("Keep It Simple—The Brain Has Limitations") disclosed why a juror's ability to absorb information can be hindered by the way the information is presented and the inherent limitations on cognitive capacity. How can trial lawyers solve this challenge in plaintiff's direct examination? By presenting the testimony so that it is understood, processed, and remembered.

Pace

In chapter 15 ("Trust Me, I'm a Trial Lawyer"), the importance of speaking more slowly was discussed in the context of opening statement or final argument. The same is true of witness examination. Jurors can be quickly overwhelmed by questions and answers that don't allow sufficient time for mental consideration. A trial lawyer must pace the questions so that jurors can think about the answers. A thoughtful pause after an important answer allows them to process the information. If an important answer is followed too quickly with another question and then another answer, either the first answer will not be absorbed because jurors have been distracted by the second one, or the second answer will not be appreciated because they are still thinking about the previous one. You might nod your head, as though you, too, are thinking about what was said. If it is allowed, you might write a few words on the board that summarize the answer. Another way of allowing jurors to process an important answer is to...