Improving witness (and attorney) performance on direct examination - part 1
Part 1 of 2
Cross-examination of defendant witnesses often represents the most stressful, vulnerable time of a trial for both witness and defense counsel. For the witness, surviving the emotional and mental chess match of a plaintiff attorney’s manipulative pattern of leading questions is often a daunting task. For defense counsel, feelings of helplessness and powerlessness are common, particularly when their witness is getting filleted on the stand. Direct examination, in contrast, is perceived as one of the few non-threatening parts of a trial for both witness and defense counsel. This is because the witness and attorney possess total control of the information that is presented to the jury, free of influence from opposing counsel. Control alleviates anxiety and worry, and direct examination provides the witness and attorney full control of what the jury will see and hear. Unfortunately, this false sense of security can lead to lax witness preparation efforts that result in ineffective testimony at trial.
After intense preparation for cross-examination, many defense attorneys calmly tell their witness, “Direct examination is when I toss you ‘softballs’ and you crush them out of the park; you will be great.” What many defense attorneys do not understand is that their witnesses are highly vulnerable even during direct examination. Witnesses can make dangerous cognitive, emotional, and communication mistakes that can severely hurt their credibility with the jury. Furthermore, defense attorneys are also highly susceptible to cognitive and strategic errors during direct examination that can inadvertently set up their witness for disaster. In reality, neither witness nor attorney is safe during direct examination. This article is designed to a) educate defense attorneys about the three common errors that can damage witness credibility during direct testimony, and b) provide defense attorneys with a plan to prepare for and conduct direct examination more effectively.
Error #1: Juror Cognitive Saturation
Both defense witnesses and attorneys vastly overestimate how much information jurors can process during testimony. Thanks to the persistent growth of technological gadgets (smartphones, tablets, etc.) that provide people with constant and near instantaneous information, juror attention span has declined from poor to atrocious. Specifically, the human brain has become so reliant on technology to provide multiple sources of information that sustained attention and concentration to a single source of information has become difficult for most people. Attentively listening to a witness testify and effectively processing that information now creates a unique neuropsychological challenge for jurors that was absent before these technological advancements. Therefore, both defense attorneys and witnesses need to understand jurors’ neurocognitive limitations and ensure that information is being presented to them in the correct fashion. Otherwise, valuable information may be missed, lost, or forgotten.
Jurors struggle to maintain focus during witness testimony, particularly during long, complex answers. Therefore, the goal of direct examination should be to promote juror cognitive digestion and prevent cognitive saturation. Cognitive “digestion” refers to the maximum amount of information that a juror can process without becoming overwhelmed, while cognitive “saturation” refers to information that exceeds the brain’s processing limits and is ultimately lost. To avoid cognitive saturation, defense attorneys must ensure that their witnesses are delivering information in a way that doesn’t exceed jurors’ cognitive capacity limitations.
Specifically, when information is delivered to a jury, it can either be “chunked” or “streamed.” The human brain is designed to effectively process smaller “chunks” of information, rather than long, continuous streams of information. The best examples of chunking include phone numbers, social security numbers, and combination locks. All of them have numbers with dashes between them, resulting in numbers being “chunked” together in groups, rather than one long stream of numbers. This results in enhanced memory capacity as the dash allows the brain to digest before processing the next chunk of information. This pause, even if only for a second, allows the brain to digest the information and prepare for subsequent information. In contrast, serial numbers, SKUs, and product identification numbers are good examples of information streaming, as these numbers are presented as long, continuous strings of data with no dashes or spaces. Trying to memorize such numbers is nearly impossible, as the continuous stream of information causes short term memory (STM) to become quickly saturated.
In testimony, answers can be delivered in digestible chunks if the
length of answers persistently stays under five seconds (“the five-second
rule”). Answers that exceed five seconds are considered a form of information
streaming, and therefore overwhelm short-term memory (cognitive saturation),
resulting in information being lost rather than being appropriately processed
and transferred into long term memory (LTM) (see Figure 1). When information is
streamed, short-term memory becomes saturated, or “full,” preventing subsequent
information from being processed and stored. Instead, the overflow information
is lost and cannot be recovered. Consider the following examples of information
chunking and streaming.
Case Example: Medical Malpractice
“Streaming” Information (ineffective)
Question: Doctor, please explain to the jury what Heparin is?
Answer: Heparin is an anticoagulant that prevents the formation of blood clots. It is used to treat and prevent blood clots in the veins, arteries, or lung. Heparin is also used before surgery to reduce the risk of blood clots. You should not use this medication if you are allergic to heparin, or if you have uncontrolled bleeding or a severe lack of platelets in your blood. Heparin may not be appropriate if you have high blood pressure, hemophilia or other bleeding disorder, a stomach or intestinal disorder, or liver disease.
“Chunking” Information (effective)
Question 1: Doctor, please explain to the jury what Heparin is?
Answer: It is a medication used to thin a patient’s blood.
Question 2: How exactly do physicians use Heparin?
Answer: We use it to treat and prevent blood clots in the veins, arteries, or lung, particularly before surgery to reduce the risk of blood clots.
Question 3: Is Heparin safe for all patients?
Answer: No. If a patient has uncontrolled bleeding or a severe lack of platelets in their blood, Heparin can be dangerous.
Question 4: Are there other instances in which the use of Heparin may be inappropriate?
Answer: Yes, Heparin may not be appropriate if a patient has high blood pressure, hemophilia or other bleeding disorder, a stomach or intestinal disorder, or liver disease.
Long, complex answers by witnesses may be authentic, truthful, and important, but they can be highly ineffective at the jury level. This may result in critical information being lost or forgotten, which can have dramatic effects in the deliberation room. However, jurors usually process more concise answers (under five seconds) very effectively, resulting in maximum information retention. This is particularly important in courtrooms that allow and encourage note-taking, as this activity can further distract jurors from effectively processing information during direct examination. If witnesses persistently adhere to the five-second rule, it allows jurors to listen and take notes simultaneously without becoming overwhelmed. Therefore, it is critical for both the witness and defense attorney to undergo juror cognitive training to gain a better understanding of the capabilities and limitations of the juror brain, and how to properly formulate questions and answers to enhance juror comprehension.
The Role of Cognitive Fatigue on Witness Performance