The call I get usually starts out something like this:

  • “Hey, Dan! I’ve got a client who is [insert some negative or offensive trait or characteristic here] and I wonder if you could help us make him/her more [some form of a total personality change].”
    • Inside my own head, I repeat my Witness Prep Mantra that I learned from my Master, Yogi Berra:  “90% of baseball is half mental.”
  • Then, out loud I say, “What if I could get your witness to answer your questions in a way that comes across well?”
    • Then I hear, “Whatever. Just do it. The witness takes the stand the day after tomorrow.”

I’m no Yogi, but Yogi is. Master Berra reminds us that there are skills needed to play baseball [content of the game], but there is also a certain mindset required to deliver those skills effectively. Yogi was talking about your witnesses, too. Witnesses have content to tell the jury, but a proper mind-set and demeanor are required to deliver that message.

If it were even possible for personalities to change, they cannot change by the “day after tomorrow.” But the impression a witness leaves on the jury can be changed/taught/coached fairly quickly. The trick is not to try to get an unpleasant person to “be nice.” The trick is to get the witness to focus on the impression they want to leave on the jury when they exit the stand.

Ask your [insert some negative or offensive trait or characteristic here] witness this question

“If I were to interview the jury after the trial is over about what type of person you are, what would you WANT their answer to be?” 

Most witnesses will not say, “I want the jury to think of me as [insert some negative or offensive trait or characteristic here]. Most people will give you some sort of positive trait. The job of the witness now becomes one of conveying the content in a way that creates this positive impression. They don’t have to change their personality—they have to change their focus to this new mission—the mission of portraying their self-proclaimed positive trait.

Minneapolis Police Chief Arradondo gave us a perfect example of this when he testified in the Derek Chauvin trial this week. I don’t know if the Chief is [insert some negative or offensive trait or characteristic here] or not. What I do know is the impression he left during his time on the stand:

  • “The measured, clinical tone of the Chief . . .”–LA Times,
  • “This is the type of objective presentation we expect and need in our leaders.”–CNN
  • “Yes!  Chief Arradondo was amazing.  Just an exemplary witness!”—anonymous, Member of the American Society of Trial Consultants

Chief Arradondo’s confident demeanor allowed him to

  1. be brief and concise, answering only “yes” or “no” when that was all that was needed.
  2. be an advocate for his point without being an advocate for his point. Even when he said “yes” to a question that might have hurt his position, he did not hesitate to just say “yes.”
  3. not be defensive in his giving up potentially damaging answers. This allowed the prosecution to go back to those questions to get him to say why he said “yes” or “no” on cross. This turned his potentially damaging answers into pure gold.

The coverage of the Chief discussed his content and his positive demeanor. That is how your witnesses need to come across. Whatever characteristic your witness chooses for their impression [sincere, honest, intelligent, etc.], becomes the basis for how they answer questions. All your practice on content needs to include practice in conveying the desired impression. You are not changing a personality; you are changing a delivery system.

Thank you, Yogi, for giving us this theoretical foundation. Thank you, Chief Arradondo, for giving us a real life example of that foundation.

Our witnesses have one chance to tell their story. All too often, though, that story gets buried in [insert some negative or offensive trait or characteristic here]. Ask your witnesses, “If I were to interview the jury after the trial about what type of person you are, what would you WANT their answer to be?” 

90% of being a good witness is half mental.

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