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On Legal Ethics

Lawyers as storytellers: Witness examination

Editor's note: this is the tenth part of an ongoing series.

To prepare a witness for direct examination, most lawyers outline all of the facts that they want to elicit from a particular witness, and then sit down with the witness and review the questions and answers to make sure that the witness is prepared to testify to each fact on cue once he or she takes the stage.

If the character of the witness is developed at all during the course of the testimony, it is usually by inference from what the witness did or said. But research tells us that the content of a witness's statement plays a relatively small role in the formation of a jury's impression of that witness. A study conducted by Dr. Albert Mehrabian, which may have been cited more frequently over the past 35 years than any other research in the area, found that only 7 percent of a person's impression of others is based upon the content of what they say, while 93 percent is based upon a combination of their voice, facial expressions and body language. What a person says is important, but how that message is delivered has more impact on the witness's character development.

Witnesses who refuse to accept that they are argumentative or evasive quickly see that they are when they watch the video replay. Witnesses who want to introduce every detail into an answer understand the value of brevity when their approach is contrasted with a more direct approach on the TV screen. Best of all, during a video-enhanced witness preparation session, in which the witness sees his or her improvement, the witness develops confidence, which translates to credibility on the stand -- credibility that is essential if your characters are to be perceived as wearing the white hat.

Consider the following easy-to-remember concepts when preparing your witnesses:

First, tell your witnesses to think of whoever asks a question as if he or she were the foreperson of the jury who was given permission by the judge to ask whatever questions were on the jurors' minds. This will help witnesses keep the jury focused on the story by avoiding sarcasm, argument, evasiveness and similar distractions.

Next, tell your witnesses that you often are reminded during witness examination of the news coverage of the Vietnam War. It seemed our forces always were seeking to take or defend a different hill somewhere in Vietnam. No one ever explained why Hill 267 needed to be taken or Hill 112 defended. It seemed every hill needed to be conquered or defended simply because it was there.

Left to their own devices, witnesses often tend to follow the same approach to their testimony. They will argue points that are irrelevant or defend actions that are indefensible. In the process, they lose the personal credibility they will need when it comes time for the jury to decide how the real conflict in the case will be resolved.

Finally, tell your witnesses to ask themselves into which of three categories each line of questioning falls. First, does it really matter? In other words, should we be willing to suffer any credibility casualties defending that hill? If not, yield ground. After all, discretion is the better part of valor.

Second, assuming it is a hill that we would like to defend if we could, we still need to ask if it is a hill that can be defended? Or will our position be overrun no matter how hard we fight? The longer a witness hangs on to an indefensible position, the more damage he does to his case.

And third, is it a hill that we need to defend if our story is to hold together? Our resources should be devoted to defending those "hills" that fall into this third category. If we have taken casualties defending hills that didn't matter, or fighting battles that couldn't be won, our forces will have been weakened, perhaps critically, when it comes time for the last stand.

We will use the previous example to illustrate how this works. Assume your client, the young entrepreneur, purchased a franchise from the defendant franchisor, and that she did virtually no research into the business, apart from reading the defendant's promotional materials that she received at a franchise fair at the Convention Center. Also, assume that before she started her own business, she had worked her way from an entry-level position to branch manager of a business in a completely different industry where she was quite successful.

During her testimony, you can anticipate she will be cross-examined about her lack of formal education. If, during discovery, you have found that 80 percent of defendant's successful franchisees have no formal education, you and your client should recognize that "hill" is not only unimportant, since whether or not someone has a formal education appears to be irrelevant to his or her success in this line of business, it is also a hill that could not be defended even if you wanted to defend it.

The fact is, the young woman has no formal education, and a few night adult-education business classes won't put a different light on the subject. If she insists on quibbling over whether attendance at Learning Annex programs constitutes "formal education," she will do more harm than good, and her story will take a dramatic turn in the defendant's direction as the debate revolves around her education instead of the defendant's lies. Remember, you must stay focused on what is important to your storyline -- not theirs.

If, during the examination of witnesses, you concentrate on developing the witnesses' character consistent with the role they play in your story, and if you are able to focus the conflict on an issue which you can win (since you haven't wasted resources defending meaningless hills or hills that could not be defended), the resolution you want is likely to follow.

Again, using the previous example, if the young entrepreneur is painted as an honest, hardworking and intelligent young woman, and the defendant as an unscrupulous, uncaring, greedy corporation, and if the conflict has focused on, for example, the issue of why it would be unfair for the plaintiff to lose the time and money she invested in reliance on the defendant, the conflict resolution will be quite predictable.

Tune in next time for a continuation of this series.


Patrick Mazzarella is a deputy district attorney in the Family Protection Division of the San Diego District Attorney's Office and is the chair of the San Diego County Bar Association Ethics Committee. The information in this column is intended to be informational only and does not constitute legal advice.

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