by: Dr. Kevin Boully
Many commercial litigators assume an upper-level manager’s ability to handle sticky questions, describe company policies and profess company values should be useful to jurors’ evaluation of the company and the behavior at issue. Probably the most important witness, right? I mean, these manager-types are high achievers, decisive managers, and confident communicators – a perfect fit for the role of company rep and star witness. They’ll take the stand early on, deliver the key messages with a sparkly grin, and slam the door on your opponent’s case. Right? Make these assumptions at your client’s (and your own) peril.
Why is this the case now more than ever? Weekly news reports support jurors’ distrust of high ranking officials and executives. Compared to lower-level employees, jurors view executives/officials as significantly more likely to toe the line, and lie to jurors’ faces if it protects their interests. At the end of the day, executives who were in an office building 2,000 miles away are typically unable to provide a satisfying answer to jurors’ most important questions: ‘What happened at the critical moment? Who was there? How did he/she use available power and choices?’
Jurors are more likely to view lower-level employees as straight-shooters, as having the hands-on experience relevant to jurors’ key case questions, and as removed enough from lawyers and the litigation-manipulation process that their testimony is most believable.
So, for your next commercial jury trial:
1. Consider your lower-level voices early in discovery. Identify those fact witnesses who were directly involved in the events and consider their relevant hands-on experience, ability to communicate, credibility, and perceived likability with a jury. Make them a part of your case narrative from the start.
2. Don’t overprepare your witnesses. Too much preparation of any company witness is counterproductive. Maintain the credibility of your lower-level witnesses by keeping them who they are – the very thing that will appeal to jurors anyway. Do not train their charms out of them through overpreparation. At the same time, if your corporate executive is too much of an advocate and literally has all the answers – jurors may distrust his/her overconfidence and infallibility. Ensure credibility by humanizing executives and resisting the temptation to backfill an answer to every possible question. “I don’t know” can be the best possible answer.
3. Take advantage of true all-star witnesses. In some commercial cases, a company employee can straddle both edges of effective witness testimony: high level authority and confidence and 'boots on the ground' experience. Whenever possible, demonstrate these witnesses' relevant hands-on experience in addition to their authority, responsibilities, and expertise to help jurors conclude: "She's been in the trenches and she knows what she is doing."
 Recent juror interviews and jury research indicate jurors’ strong preference to hear from witnesses with first-hand, in-the-room exposure to the key case events and increased criticism of witnesses who were removed from the action rendering judgments on those who were present.