By Dr. Ken Broda-Bahm:
Jurors often identify with the fact witness, and for a good reason. If there is one person in the courtroom with whom they have the most in common, it is the person in the witness chair - the person who also has no specialized legal training, and was, like them, pulled into the courtroom based on something other than personal choice. That basic affinity can mean that in a conflict, the juror is going to be implicitly pulling for the witness. The exception occurs when witnesses give jurors some reason to set aside that trust. One sure way to set aside trust is to adopt a tone that rubs jurors the wrong way. Fact witnesses who come across as aloof, arrogant, irritated, intense, combative, sarcastic, disconnected, condescending, or dismissive in tone will give jurors permission to side instead with the attorney who is trying to dismantle their testimony.
Witnesses need to strike the right tone. At a general level, that seems pretty obvious, but in practice it can be a little more complicated. Witnesses need to strike a careful balance on a number of fronts and need to avoid many common pitfalls. And they need to do all of this while still keeping their focus on communicating naturally and telling the truth. Making that happen in either deposition or trial testimony requires more than just the advice to be careful about their tone. In this post, I’m going to share 11 common reminders I give witnesses and the attorneys working with them.