Improving witness (and attorney) performance on direct examination - part 2
Part 2 of 2
In part one of this topic, we discussed the risks associated with not preparing for direct examination to the same degree that witnesses are prepared for cross examination. We introduced the first of three common errors that can damage witness credibility during direct testimony, which is overestimating how much information jurors can process during testimony. In the conclusion of this topic, we cover the next two common errors: emotional volunteering of information and failure to use the primacy effect.
Error #2: Emotional Volunteering of Information
A savvy attorney should have his/her questions strategically ordered, providing both the witness and the jury with a road map, or blueprint, to the case. The ability to stick to that plan and present jurors with the proper order of information helps jurors effectively understand the defense story. However, witnesses often develop the burning desire to jump ahead of the attorney and bring up important information that has not been asked for yet. This problem is emotionally based, as many witnesses are highly motivated to win the case during their testimony.
When a witness jumps ahead of the questioner, it has three detrimental effects on the jury. First, it appears that the witness is over-advocating the defense position, thus potentially damaging credibility. Second, the witness-attorney team appears disorganized, as the witness is not directly answering the actual question the attorney asked. Finally, it can confuse jurors and inhibit proper comprehension of key case information. This ultimately results in frequent interruptions from the attorney to get the witness back on track, which can damage jurors’ perceptions of the entire defense team.
An example of how a witness can jump ahead of the questioner and bring in information that the questioner intended to come out later in the questioning is as follows:
Question: Doctor, please explain to the jury what Heparin is?
Answer: It is a medication used to thin a patient’s blood, but sometimes, like with this matter involving Mr. Jones, Lovenox is more appropriate as it can prevent a special type of blood clot called a deep vein thrombosis (DVT).
In this example, while the information about Lovenox and DVT’s is indeed very important to the case, the witness has delivered it to the jury at the wrong time. This not only can confuse jurors, but also can create the appearance of disorganization within the attorney-witness team. The attorney’s plan was to first educate the jury about Heparin, then educate them about Lovenox, and then go into the dangers of DVT’s later on in the questioning. However, the witness deviated from the plan and introduced this information immediately. This is an emotional error on behalf of the witness, as high levels of witness motivation can result in decreased patience and poise.
Some witnesses, particularly named defendants, think they must win the case themselves, and therefore tend to try too hard. To prevent this damaging error at trial, witnesses require emotional-control training from a qualified litigation consultant to ensure they stay on course throughout their examination. Witnesses need to understand that the attorney must be in the driver’s seat and guide them down the correct path, as an attorney’s carefully developed strategy wins cases, not witnesses. Additionally, witnesses must also understand jurors’ cognitive needs, and develop the motivation to improve juror comprehension rather than fulfilling their own emotional needs during testimony.
Error #3: Failure to use the Primacy Effect
The first three minutes of a witness’ testimony is more valuable to jurors than testimony that is delivered towards the middle and end of the examination. This important neuropsychological timing effect is precisely why attorneys should not start their direct examination by covering the witness’s education and work history, as that information is better placed in the middle or end of the testimony. Rather, the most effective way to examine a witness during direct examination is to start with questions that go right to the heart of the case, as jurors will value that information more than subsequent information. This is known as the primacy effect, meaning jurors perceive information presented early in an examination as more valuable and meaningful than information presented in the middle or at the end. This is a very powerful neurocognitive tool that few defense attorneys utilize because they erroneously assume that primacy and recency effects are similar. While recent information tends to be better remembered by jurors, it is certainly not valued similarly as the juror brain places great significance on early information (vs. later information). In other words, the recency effect only impacts juror memory recall, while the primacy effect improves both memory and meaningfulness of the information.
For example, in medical malpractice cases, defense attorneys usually ask the following question at the end of the direct examination: “Doctor, did you in any way deviate from the standard of care hen you were treating Mr. Smith?” Of course, the physician delivers a firm, confident “no” to the jury. Most defense attorneys do this because they want to end on a high note, assuming that placing this important information at the end will have a powerful influence on jury decision- making. However, this is not the best strategic approach, as this question is THE pivotal question in the case. Instead, this question should be the very first question out of the gate, with a few follow up questions allowing the witness to explain why the care provided to Mr. Smith was reasonable and within the standard of care. That is what the jury wants and needs immediately, rather than later in the examination. Defense attorneys often state “I want the jurors to get to know my witness, so I start with the biographical questions; I want to ‘wow them’ with my client’s impressive education and training.” In reality, jurors don’t care where the physician went to medical school or where he did his/her residency. Jurors don’t care if the physician is board certified and has privileges at four city hospitals. Jurors first and foremost concern is about the defendant’s conduct and decision making and asking those key questions immediately in direct examination takes full advantage of the primacy effect.
The primacy effect is particularly important if plaintiff’s counsel has called the defendant witness to the stand as an adverse witness. That type of questioning, characterized by leading, closed ended questions (yes/no, true/false, agree/disagree), allows for very little explanation, if any, from the witness. In that circumstance, jurors are starving for explanations regarding the defendant’s conduct and decisions once the defense attorney approaches the podium to begin rehabilitation efforts. By giving jurors what they desire immediately, the defense team can considerably increase the meaningfulness and influence of the defendant’s most important testimony.
From the jurors’ perspective, direct examination from a defendant witness is arguably the most important part of a trial as the party being accused of negligence or causing harm has the opportunity to explain conduct and decisions. However, the three errors of juror cognitive saturation, emotional volunteering of information, and failure to use the primacy effect can significantly impair juror comprehension of key case issues, as well as negatively impact jurors’ perception of the defense team. To prevent these problems, and to enhance the quality of direct examination, it is imperative that defense attorneys take a step back and reevaluate their trial preparation plans. In the short term, it is wise to retain a qualified litigation consultant to evaluate witness responses to promote juror cognitive digestion, as well as assess the attorney’s order of questioning to ensure proper use of the primacy effect. A qualified consultant should have advanced training in the areas of cognition, memory, attention and concentration, communication science, and emotion. In the long term, attorneys should receive training in these areas by attending CLE’s from litigation consultants who have expertise in the neurocognition behind jury decision-making.
The Role of Cognitive Fatigue on Witness Performance